IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.771 of 2004 1. THE STATE OF BIHAR, through the Secretary, Human Resources now the same is known as Secondary Education, Bihar, Patna. 2. The Director, Secondary Education, Bihar, Patna. 3. Commissioner-cum- Secretary, Human Resources Development Department, Government of Bihar, Patna. 4. District Education Officer, Buxar. 5. Headmaster, Multipurpose High School, Dumraon, Buxar. ….Respondents-Appellants. Versus 1. KAMLA KANT TRIPATHI, son of Late Ram Niwas Tripathi, resident of Thathari Mohalla, P.S. Dumraon, District- Buxar, at present Road No.13A, Rajendra Nagar, Patna-16, P.S. Kadamkuan, District- Patna. 2. Uma Kant Tripathi, son of Late Ram Niwas Tripathi, resident of Thathari Mohalla, P.S. Dumraon, District- Buxar, at present Nepali Kothi, Boring Road, Patna, P.S. S.K. Puri, District- Patna. 3. Rama Kant Tripathi, son of Late Ram Niwas Tripathi, resident of Thathari Mohalla, Tiwari Tola, Dumraon, P.S. Dumraon, District- Buxar. 4. Mostt. Gunwati Devi (Deceased), widow of Late Ram Niwas Tripathi, resident of Thathari, P.S. Dumraon, District- Buxar (D.F.D. vide Court’s order no.5 dated 19.8.2005). ….. Petitioner- Respondents. 5. The Accountant General of Bihar, Patna. …..Respondent-Respondent. ----------- 09- 25.10.2010 Heard Mr. Shashi Bhushan Kumar, learned Standing Counsel No.16 for the appellants, and Mr. Arun Kumar Arun for respondent no.5. This appeal under Clause 10 of the Letters Patent of the High Court of Judicature at Patna, raises a grievance with respect to the order dated 29.11.2001, passed by a learned Single Judge of this Court, in C.W.J.C. No.5942 of 2000, preferred by the widow and 2 the children of the late employee, and the respondent authorities have been directed to release the family pension from 15.12.1979, the date of death of the employee, till 23.1.2001, the date preceding the death of the widow. 2. A brief statement of facts essential for the disposal of this appeal may be indicated. Ram Niwas Tripathi was serving as an Assistant Teacher in a privately managed school. He retired from service on 15.1.1970. All his post-retirement benefits as per the scheme applicable to him were released to him. The employee died on 16.12.1979. Most. Gunwati Devi, the widow and the children, preferred the present C.W.J.C. No.5942 of 2000, which was lodged in this Court on 12.7.2000, seeking a direction to the authorities to release family pension to them. She died during the pendency of the writ proceedings, i.e. on 24.1.2001. The learned Single Judge allowed the writ petition and directed the authorities to release the amount of family pension admissible to the widow for the period 15.12.1979 to 23.1.2001. 2.1) Aggrieved by the order, the State of Bihar preferred the present appeal which was dismissed by a Division Bench of this Court by order dated 21.5.2007, on the ground of delay in filing the appeal. The order dismissing 3 the appeal was set aside by a Division Bench of this Court by order dated 3.3.2010, passed in Civil Review No.233 of 2007, whereby the delay in filing the appeal was condoned, and it was observed that the order of the learned Single Judge needs fresh decision in view of Division Bench decision of this Court in L.P.A. No.439 of 2000 (The State of Bihar Vs. Arya Devi), and the analogous L.P.A. No.1009 of 2000 (The State of Bihar Vs. Smt. Chandrakanta Devi), since reported in 2001 (2) P.L.J.R. 212. That is how the matter comes up once again before the Division Bench for final decision in accordance with law laid down in the said appeals, and other relevant aspects of the matter. 3. We have perused the materials on record and considered the submissions of learned counsel for the parties. It appears to us that the schemes or the rules which were applicable to the employee for payment of post-retirement benefits were not brought to the notice of the learned Single Judge. He seems to have proceeded on the assumption that the Bihar Pension Rules was applicable to the employee, and consequently the writ petitioners also. It appears that the employee was working as an Assistant Teacher in a privately managed school and was entitled to the benefits of contributory provident fund. The State Government, in the 4 department of Education, published Notification No.3431 in the issue of 4.9.1964 of the Bihar Gazette Extraordinary, whereby the benefit of contributory provident fund was replaced by the triple benefit scheme from the date of the gazette notification. It is beyond the frame of the writ petition whether or not the employee, or his heirs and legal representatives, were entitled to the benefit of contributory provident fund or the triple benefit scheme. This much is evident that the employee had retired from service on 15.1.1970, and the schools were taken over by an Act of the State Legislature in two stages. Some of the schools were taken over with effect from 1.1.1971, and other schools were taken over with effect from 1.4.1976. There is no knowing as to the date on which the employee’s school was taken over. It is, however, clear that he had retired prior to 1.1.1971, the date on which the first batch of schools were taken over. It is thus evident that they were surely not entitled to the benefits of post-retirement benefits under the Bihar Pension Rules. It is further evident from the material on record that the employee after his superannuation had collected his post- retirement benefits as per his entitlement, which did not include family pension to the heirs and legal representatives after his demise. We are supported by the judgment of the 5 Division Bench of this Court in State of Bihar Vs. Arya Devi (supra). We, therefore, disagree with the order of the learned Single Judge. 4. In the result, this appeal is allowed, and the writ petition is dismissed. (S.K. Katriar, J.) (Birendra Prasad Verma, J.) S.K.Pathak/