HIGH COURT OF UTTARANCHAL AT NAINITAL (Court’s order whether the case is or not approved for reporting.) (Chapter VIII Rule 32 (2) (b) Description of the case. W.P. No. 1627/04 (S/S) Smt. Gaura Devi VS U.P. States and others. Approved for reporting Not approved for reporting Date of decision: 31.03.2006 Initial of Judge 2 HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No. 1627 of 2004 (SS) Smt. Gaura Devi w/o Late Moti Singh Village Udava, Post herakhan, Tehsil Bhimtal District Nainital ……. Petitioner Versus 1. State of Uttaranchal 2. Director Education (Basic), Dehradun 3. Addl. Basic Education Officer, Nainital 4. State of U.P. through its Secretary of Education Govt. of U.P. Lucknow …… Respondents Sri Ashish Joshi, Advocate for the petitioner Standing counsel for the respondents. Dated: 31.3.2006 Hon’ble Rajesh Tandon, J. Heard the learned counsel for the parties at length. By the present writ petition the petitioner has prayed for the issue of a writ, order or direction in the nature of certiorari quashing paragraph no.24 of Government Order dated 17.12.1965 and commanding the respondents to release family pension in favour of the petitioner. 3 Briefly stated the facts giving rise to the present writ petition are that the husband of the petitioner late Sri Moti Singh was posted as Principal, in the Primary School, Pinro, Dhari, Nainital who retired after superannuating age in 1977. The husband of the petitioner was getting pension during his life time. The petitioner has stated that after the death of her husband she moved a representation before the Director, Education Basic Uttar Pradesh, Lucknow for granting her family pension. The matter was referred to the Finance and Accounts Officer (Finance Controller), Allahabad, who ultimately rejected the representation of the petitioner vide order dated 15.7.2004 on the ground that as per paragraph 24 of G.O. No. A-5355/15-5133-1962 dated 17.12.1965, the family pension can be given only for the period of 10 years or up to the age of 65 years whichever is less, after the date of superannuation. The respondents have filed a counter affidavit and admitted the fact that the husband of the petitioner was a teacher under the Basic Shiksha Parishad. The respondents have reiterated that according to the proviso of paragraph 24 of G.O. No. A-5355/15-3133-1962 dated 17.12.1965, no family pension is payable to the petitioner after the death of her husband. 4 It has been held in 1985 (1) S.C.C. State of Kerala and other Vs. M. Padmanabhan Nair by the Hon’ble Supreme Court the pension is a valuable right and property and the petitioner has a right to claim by virtue of the continuous services rendered by him. The observations of the Apex Court are quoted below:- “Pension and gratuity are no longer and bounty to be distributed by the Government to its employees on their retirement but have become, under the decisions of this Court, valuable rights and property in their hands and any culpable delay in settlement and disbursement thereof must be visited with the penalty of payment of interest at the current market rate till actual payment.” The aforesaid judgment of the Apex Court has also been followed in JT 1999 (2) SC 359 Dr. Uma Agarwal Vs. State of U.P. & another and has held as under:- “Now-a-days, several writ petitions are being filed in this court and various High Courts seeking relief for disbursement, of retrial benefits, because of inordinate delays in payment of these benefits. As Krishna Iyer J. stated in State of Mysore Vs. C.R. Sheshadri & others (1974(4) S.C.C. 308), a retired government official is sensitive to delay in drawing monetary benefits. And to avoid posthumous satisfaction of the pecuniary expectation of the superannuated public servant- not unusual in government, it is becoming necessary to issue 5 directions, in several cases, for early payment of these dues. In yet anther case in State of Kerala and others Vs. M. Padmanabhan Nair (1985(1) SCC 429 this court had occasion to point out that usually ‘the delay occurs by reason of non- production of the L.P.C. (Usually the delay occurs by reason of non-production of the L.P.C. (last pay certificate) and the N.L.C. (no liability certificate) from the concerned Departments but both these documents pertain to matters, records whereof would be with the concerned Government Departments. Since the date of retirement of every Government servant in very much known in advance we fail to appreciate why the process of collecting the requisite information and issuance of these two documents should not be completed at least a week before the date of retirement so that the payment of gratuity amount could be made to the Government servant on the date he retires or on the following day and pension at the expiry of the following month. The necessity for prompt payment of the retirement dues to a Government servant immediately after his retirement cannot be over-emphasised and it would not be unreasonable to direct that the liability to pay penal interest on these dues at the current market rate should commence at the expiry of two months from the date of retirement.” Apex Court in State of Kerala Vs. M. Madmanabhan Nair 1985 (1) S.C.C. page 429, has held as under:- “Pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement but have become, under the decisions of this Court, valuable rights and property in their hands and any culpable 6 delay in settlement and disbursement thereof must be visited with the penalty of payment of interest at the current market rate till actual payment.” In the instant case the husband of the petitioner died on 15.11.96, she has stated that she moved a representation for sanction of family pension in favour of her but finally her representation was rejected by the respondents. The rules governing the family pension are for the benefit of the employees and their dependants. They are piece of beneficial legislation and they intend to promote social justice. The widow of a retired Government servant has right to get family pension after the death of her husband. In the present case the petitioner is aged about 82 years. Such an old lady, after the death of her husband in the year 1995, is knocking the doors of the respondents to get her valuable right of family pension, but she is deprived by the authorities on some hyper- technical ground. Apex Court in the case Kapila Hingorani vs. State of Bihar 2003 (7) AIC 18 SC has held as under: The States of India are welfare States. They having regard to the constitutional provisions adumbrated in the Constitution of India and in particular Part IV thereof laying down the Directive Principles of the State Policy and Part IVA laying down the Fundamental Duties are bound to preserve the practice to maintain the human dignity.” 7 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: In the case Islamic Academy of Education vs. State of Karnataka (2003) 6 SCC 697 the Apex Court has relied upon the judgment in Kapila Hingorani vs. State of Bihar 2003) 6 SCC 1: JT (2003) 5 SC 1 and Munn vs. 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 vs. 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. It is the indefeasible right of the employee and after his death of his dependants and family members. An old woman of the age of more than 60 years cannot be expected to earn her livelihood 8 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 the above discussion paragraph 24 of Government Order No. A-5355/15-5133-1962 dated 17.12.1965, annexure-CA 2 to the writ petition, so far as it relates to the petitioner is quashed. The respondents are directed to release family pension in favour of the petitioner within one month after the receipt of certified copy of this order. The writ petition is accordingly allowed. No order as to costs. 31.3.2006 Rajesh Tandon, J. *Dhyani