IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.47 of 2003 MOST.POONAM KUER wife of Late Sumangal Rai, Resident of Village Natha, Chapra, P.O. Poshi, Via- Parsa, P.S. Dariyapur, District- Saran at Chapra. …………..Petitioner/ Appellant. Versus 1. THE STATE OF BIHAR 2. The Treasury Officer, Saran at Chapra. 3. The Accountant General, Bihar, Patna. …………….Respondents/ Respondents. ----------- For the Appellant:- Mr. Rajendra Prasad Singh, Sr. Advocate. & Mr. Ramakant Singh, Advocate. For the State:- Mr. D.K.Sinha, A.A.G.2 & Mr. S.B. Kumar, S.C.7. For the Accountant General:- Mr. J.P. Karn, Advocate. ……………. 9 04.05.2011 The present L.P.A. has been filed by the petitioner- appellant herein against the order dated 29.11.2002 passed in C.W.J.C. No.5716 of 2000 dismissing the writ petition. The case of the appellant is that her husband, who was an Assistant Teacher, died in harness on 23.5.1973. She applied for consideration of her case for family pension which was sanctioned and paid to her from 23.5.1974 up to February, 1994. However, in the year 1993 Respondent no.3 has issued a letter dated 13.12.1993 directing respondent no.2 to stop payment of family pension to the appellant. In pursuance of that letter respondent no.2 sent a letter dated 15.12.1993 to the Branch Manager, Central Bank, Mastichak to stop family pension to the appellant and accordingly family pension of the appellant was stopped from March, 1994. As several representations filed by the appellant was not responded by the official respondent she has chosen to file the writ petition. 2 The learned Single Judge having heard counsel for the parties has chosen to rely upon a judgment of this Court in the case of „State of Bihar Vs. Arya Devi’ reported in 2001 (2) B.L.J. 126 and has held that according to the said judgment in case of such employee there is no entitlement of family pension which became available only from 1.4.1976. Mr. Rajendra Prasad Singh, learned Senior counsel appearing on behalf of the appellant relying upon the judgment of the Division Bench of this Court reported in 2001 (2) PLJR 212 which is equivalent to the aforesaid judgment reported in 2001 (2) BLJ 126 has contended that the aforesaid judgment did not deal with the sanction of family pension of a teacher of elementary schools. According to him Section 4(2) of the Bihar Non- Government Elementary Schools (Taking Over of Control) Act, 1976 is the only section which prevails the conditions of the employees, which provides that every teachers or employees in the school taken over by the State Government shall be deemed to have been transferred to and become a teacher or employee of the State Government with such designation as the State Government may determine and shall hold office by the same tenure at the same remuneration and on the terms and conditions of the service. The learned Senior counsel has further argued that the ratio of the decision which was relied upon by the learned Single Judge is not applicable in the case of the appellant as husband of the appellant have become a Government Servant after taking over of the school 3 as he died on 23rd May, 1973 and has rendered his services for more than one year after taking over of the school and as such appellant is entitled for family pension as per the Family Pension Scheme for the State Government employees which was introduced by the State Government vide its Finance Department Memo No. Pen-103/64/9505/F1 dated 3rd September, 1954 which came into force with effect from 1st April, 1964. Per contra, the learned Additional Advocate General appearing on behalf of the State has argued that the law laid down by the Division Bench of this Court in the case of Arya Devi (Supra) is applicable in the case of the teachers and other employees of the taking over schools. The learned Senior counsel appearing on behalf of the appellant has brought to the notice of this Court a judgment in C.W.J.C. No.1438 of 1998 which was disposed of on 15.12.1998 in the case of „Mostt. Bachchi Devi & ors Vs. The State of Bihar & Ors’ reported in 1999 (1) PLJR 521, in which the learned Single Judge while dealing with the matter has relied upon the judgment in the case of „Smt. Sharda Devi Vs. The State of Bihar’ reported in 1996 (2) PLJR 470 and has held that the family pension scheme was enforced in the year 1964 and as such the employees who died after 1964 are entitled for family pension. No L.P.A. was preferred against this judgment. There is another decision of single Bench in a case of „Lal Muni Devi Vs. State of Bihar & Ors’ reported in 1998 (3) P.L.J.R. 46 Against the said 4 decision L.P.A. No.1045 of 1998 was filed which was also dismissed as such the said order has become final as of today. We had also the occasion to go through the judgment of the Division Bench as stated supra as also the provision of Non- Government Elementary Schools (Taking over of Control) Act, 1976. Clause (2) of section 4 of the said Act reads as follows:- “Every Officer, teacher or other employee holding any office or post in the school taken over by the State Government shall be deemed to have been transferred to and become an officer, teacher or employee of the State Government with such designation as the State Govern may determine and shall hold office by the same tenure, at the same remuneration and on the terms and conditions of service as he would have held before the taking over the said school and shall continue to do so unless and until such tenure remuneration, terms and conditions of service are duly altered by the State Government.” The State of Bihar has come with a scheme i.e. Family Pension Scheme 1964 so as to enable to extend the benefit of Family Pension Scheme for those Government employee who retired on or after 1st April, 1964. Clause (7) of the said scheme shows that such benefit of family pension would be provided to the employee who has rendered the services for more than one year from the cut off date in a taken over schools. The Division Bench has held that the teachers who had died after taking over of the private schools have become a government employee under the provisions as contained in Clause (7) of the said Family Pension Scheme, 1964. As the late husband of the appellant has completed one year of service tenure in a taken over school he has become a government servant. 5 In that view of the matter, we are of the opinion that the appellant is entitled for the benefit of the Family pension as per Family Pension Rule, 1964 and also in view of law laid down in the case of Mostt. Bachchi Devi (Supra) which was rendered following the law laid in the case of „Smt. Sharda Devi’ (Supra), the L.P.A filed against the aforesaid judgments has also been dismissed. The law as laid down in the case of Mostt. Bachchi Devi (Supra) decides the question of entitlement of Family pension to such an employee who falls under the purview of the provisions of Bihar Non-Government Elementary Schools (Taking over of Control) Act, 1976. We are of the opinion that the employees who worked for more than one year in a taken over schools are entitled for sanction of Family pension under the provisions of 1964 Act. The Learned A.C. to Government pleader has relied upon a letter bearing letter No.1802 dated 7.6.1976 to contend that the appellant is not entitled for Family Pension, but a copy of the said letter has not been produced before this Court, as such we are of the opinion that the said letter cannot be made part of the records of this case. It is relevant to state here that in Appendix-8 of the Bihar Pension Rules the decision of the Government vide letter Nos. Q/T 806/77 Shi0 2348 dated 26.12.1977 and 1069 dated 23.6.1977 respectively with regard to entitlements of pension has been discussed while deals with such teachers of the school taken 6 over by the Government who either retires on or before 1.4.1976, but is silent about such teachers who died in harness after deemed taking over of the school by Government on 1.1.1971 before the Government coming with any rule regarding terms and condition of their service. In the instant appeal husband of the appellant died on 23.5.1973, roughly two and half years of such taking over of the school. Our attention has also been drawn towards one Division Bench decision of this Court in a case of „Janki Devi Vs. The State of Bihar & Ors’ reported in 2008 (4) P.L.J.R. 299 wherein a teacher of such school though retired in November 1971 i.e. after eleven months of taking over of the school was denied his pension till his death in December, 1985, this Court directed for payment of pension as well as family pension to his widow. Reference in this connection may be made to the judgment of the Apex Court in the case of „Jodh Singh Vs. Union of India & Anr.’ reported in AIR 1980 SC 2081, wherein in paragraph 9 of the judgment the Apex Court has held as follows:- “Pension is a retirement benefit. It is admissible under the relevant rules on superannuation. It is payable on superannuation to the employee himself during his lifetime after retirement. Special family pension is not admissible to the employee but to the specified members of the employee‟s family and that too in the event of his death while in service or after his retirement as provided in the Regulations.” In the same paragraph of the judgment, it has further been held as follows:- “It is not that the deceased gets pension or earns special family pension. It is the untimely 7 death of the deceased, the process of death having been hastened or accelerated by the hazards of service that the widow who is rendered destitute is granted special family pension. Whether the widow qualifies for special family pension is to be determined by the sanctioning authority.” In paragraph 12 of the aforesaid judgment the Apex Court has held as follows:- “The real controversy is whether a special family pension admissible to a widow in her capacity as widow could ever form a part of the estate of the deceased which could be disposed of by testamentary disposition ?. Special family pension is payable to the widow on the death of the officer. It is not payable in his lifetime. What is not payable during lifetime of the deceased over which he has no power of disposition cannot form part of his estate. It is the event of his death that provides the eligibility qualification for claiming special family pension. Such qualifying event which can only occur on the death of the deceased and which event confers some monetary benefit on someone other than the deceased albeit related to the deceased, cannot form part of the estate of the deceased which he can dispose of by testamentary disposition. Therefore, it is unquestionably established that special family pension sanctioned to the widow of an officer of the Indian Air Force by the President of India under Rule 74 of the Rules could not be subject matter of testamentary disposition.” In view of law laid down by the Apex Court we are of the opinion that the appellant who is widow of the deceased employee is entitled to receive family pension. In that view of the matter, this Court directs the authorities to pay the family pension including the arrears to the appellant within a period of three months from the date of receipt of a copy of this order. With the above observation the order of the learned 8 Single Judge is set aside and this appeal is allowed. Abhay Kumar ( T. Meena Kumari, J.) (Akhilesh Chandra, J)