IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL. Writ Petition no. 1505 (SS) 2004. Mohan Chandra Joshi S/o Sri Manorath Joshi, Resident of Wadda, Tehsil & District Pithoragarh. …………Petitioner. Versus 1. State of U.P., through Principal Secretary, Department of Education, U.P. Shasan, Lucknow, 2. Director, Education (Basic), U.P. Allahabad, 3. State of Uttaranchal, through Secretary, Department of Education, Uttaranchal Shasan, Dehradun, 4. Director, School Education, Uttaranchal, Dehradun, 5. District Basic Education Officer/ Assistant District Education Officer, (Basic), Pithoragarh. …………Respondents. Sri Manoj Tewari, Adv. & Sri Alok Mehra, learned counsel for the petitioner, Smt. Beena Pandey, learned Standing Counsel for state of U.P. / respondent nos. 1 & 2, Sri Syed Nadeem, Brief Holder for State of Uttaranchal/ respondent nos. 3 & 5, Hon’ble M.M. Ghildiyal, J Heard Sri Alok Mehra, holding brief of Sri Manoj Tewari, learned counsel for the petitioner, Smt. Beena Pandey, learned Standing Counsel for state of U.P. / respondent nos. 1 & 2, and Sri Syed Nadeem, Brief Holder for State of Uttaranchal/ respondent nos. 3 to 5. The petitioner has filed the present writ petition seeking writ, order or direction in the nature of mandamus commanding the respondents to forthwith grant family pension to the dependents of late Smt. Geeta Joshi in accordance with the Government Policy alongwith arrears and interest on the delayed payment within a timeframe specified by this Court. The facts of the case, in brief, are that late Smt. Geeta Joshi was legally wedded wife of the petitioner who served as Assistant Teacher Primary School in district Pithoragarh. Late Smt. Geeta Joshi was appointed as Assistant Teacher on 14.08.1971 and she died in harness on 11.09.1980 while in service. At the time of her death, she was serving at Primary School, Bharkatiya. Smt. Joshi expired leaving behind her husband- the petitioner and two sons, namely, Girish Chandra Joshi and Tribhuwan Joshi aged about 8 years and 5 years respectively at the time of the death of their mother. The entire family was dependant upon Smt. Geeta Joshi. The petitioner moved an application for grant of family pension before the District Education Officer, Pithoragarh, however the same was not granted to the petitioner. A Govt. Order was issued by the State of U.P. on 31st March 1982 providing family pension to the teachers serving in Institutions run by Basic Education Board and also to the teachers of Aided Institutions. Another Govt. Order was issued on 16.06.1984 clarifying the earlier G.O. dated 31st March 1982. Though the petitioner was entitled to get family pension after the death of his wife late Smt. Geeta Joshi however the respondents did not pay any heed towards it, consequently he was constrained to file the present writ petition. Time was granted to the respondents to file counter affidavit, however the respondent nos. 1 & 2 have not filed any counter affidavit till date. The respondent nos. 3,4, & 5 have filed counter affidavit. In para-6 of the counter affidavit, the respondents have taken stand that at the time of death of petitioner’s wife i.e. on 11.09.1980, there was no Govt. Order to provide family pension in the Basic Education Board, nor the petitioner had applied for family pension immediately after death of his wife. On the application filed by Sri Girish Ch. Joshi- the son of the petitioner, the then Basic Education Officer vide its letter dated 26th September 1997 had referred the case to Account Officer, Basic Education Board, Pithoragarh. In para-9 of the counter affidavit the respondents have taken stand that the pension scheme is applicable to the employees of Basic Education Board from 01.10.1981, thus the petitioner is not entitled to get family pension, as his wife was died on 11.09.1980 prior to enforcement of Govt. Order dated 01.10.1981. Learned counsel for the petitioner has drawn my attention to the Govt. Order dated 31st March 1982 annexed as annexure no. 3 to the writ petition, which provides that the teachers of Primary Schools shall also get family pension w.e.f. 1st October 1981, provided they are covered under the New Pension Scheme enforced on 8th March 1978. The relevant extract is reproduced hereunder:- Þ mijksDr oxZ ds v/;kid vkSj muds vkfJr ikfjokfjd iSa’ku fn;s tkus dh 'kklu ls cjkcj eakx dj djrs vk jgs Fks ftl ij 'kklu }kjk lE;d~ :i ls fopkj fd;k x;k vkSj mudh eakx dks 'kklu }kjk Lohdkj dj fy;k gSA vr% eq>s ;g dgus dk funsZ’k gqvk gS fd ik’okZafdr ’kklukns’kksa esa ikfjokfjd iSa’ku u fn;s tkus dh ’krZ dks fujLr djrs gq, jkT;iky egksn; mDr ’kklukns’kksa esa fufgr izkfo/kkuksa ds vUrZxr lkekU; Hkfo"; fuf/k] ,oa uohu iSa’ku ;kstuk ls vko`Rr lgk;rk izkIr twfu;j gkbZLdwy] mPprj ek/;fed fo|ky; rFkk fMxzh dkyst ,oa mRrj izns’k csfld f’k{kk ifj"kn~ }kjk lapkfyr izkbZejh ,oa twfu;j gkbZLdwy ds leLr f’k{kdksa dks jktdh; deZpkfj;ksa dh Hkkafr ikfjokfjd iSa’ku dh lqfo/kk fnuakd 1 vDrwcj 1981 ls fn;s tkus dh Lohd`fr iznku djrs gSAÞ Para-4 of the aforesaid Govt. Order provides that if any person while in service has completed 7 years continuous service, and has died, in that case family pension will be payable for a period of first 7 years from the date of his death or till he attains age of 65 years, in case he is alive, whichever is earlier. The relevant paragraphs of the Govt. Order is reproduced hereunder:- “¼d½ lsokjr jgrs gq, e`R;q gks tkus dh n’kk esa ;fn e`rd ds de us de lkr o"kZ dh vfojy lsok iznku dh gS rks e`R;q dh frfFk ds ckn dh frfFk ls izkjfEHkd lkr o"kZ ;k ml frfFk rd tc mlus thfor jgus dh n’kk esa 65 o"kZ dh vk;q izkIr dj yh gksrh] tks Hkh igys lekIr gks] ikfjokfjd iSa’ku ewy osru dh vk/kh vFkok bl ;kstuk ds v/khu vU;Fkk ns; /kujkf’k dk nqxquk tks Hkh de gks] ds cjkcj gksxhA” Consequent upon the G.O. issued on 31st March 1982 facility for family pension was provided w.e.f. 1st October 1981. The Govt. of U.P. has issued a G.O. dated 16th June 1984 clarifying the G.O. dated 31st March 1982 to the effect that the family pension will be payable to the dependants of the deceased w.e.f. 01.10.1981 whether the teacher died before or after 01.10.1981. But no arrear will be payable to the dependants of the deceased with the retrospective effect i.e. prior to 01.10.1981, however the pension will be payable only w.e.f. 01.10.1981. The relevant extract is reproduced hereunder:- “ mi;qZDr fo"k;d 'kklukns’k la[;k 6246 @ 15&8&3004 ¼16½@77 fnukad 31 ekpZ 1982 dk Li"Vhdj.k djrs gq, eq>s ;g dgus dk funsZ’k gqvk gS fd ftyk fo|ky; fujh{kd] eqtQ~jiqj us vius i=kad ikfj0 ¼iSa’ku½ 7472&73@83&84 fnukad 21-01-1984 }kjk ;g i`PNk dh gS fd fdlh v/;kid dh e`R;q ;fn 01-10-1981 ds iwoZ gks x;h gS rks mlds vkfJrksa dks ikfjokfjd iSa’ku dk ykHk feysxk ;k ugha] bl laEcU/k esa ;g Li"V fd;k tkrk gS fd iz’uxr jktkKk ds micU/kksa ds v/khu ;fn e`rd v/;kid ds vkfJrksa dks vU;Fkk ikfjokfjd iSa’ku ns; gks rks pkgs v/;kid dh e`R;q 01-10-1981 ds iwoZ gqbZ gks vFkok ckn esa gqbZ gks] mlds vkfJrksa dks fnukad 01-10-1981 ls jktkKk ds izfo/kuksa ds v/khu ikfjokfjd iSa’ku Lohd`r dh tk;sxhA vxzsrj ;g Hkh Li"V fd;k tkrk gS fd e`rd v/;kid ds vkfJrksa dks 01-10-1981 ls iwoZ dh vof/k ds fy, dksbZ vo’ks"k vkfn ds Hkqxrku dk iz’u ugha mBrk D;ksafd iz’uxr ;kstuk 01-10-1981 ls ykxw dh x;h gSA" Undisputedly, the petitioner’s wife was appointed as Assistant Teacher on 14.08.1971 and she expired on 11.09.1980, thus she had completed more than 7years’ service as is required under the G.O. dated 31st March 1982 to get family pension, provided she is covered by the G.O. dated 8th March 1978. According to the G.O. dated 16th June 1984, the petitioner is entitled to get family pension w.e.f. 01.10.1981 till 10.09.1987. There is no rebuttal of the averments made in the writ petition that the petitioner is entitled to get family pension in pursuance of the G.O. dated 31st March 1982 and G.O. dated 16th June 1984. In the counter affidavit filed by the respondent nos. 3 to 5, the stand taken by the respondents is that the petitioner has not applied for family pension immediately after the death of his wife, but I find no force in this argument. In case, if the petitioner is entitled to get family pension whether he applied or not for the same, it was the duty of the Department to grant family pension to the legal him of the deceased employee. In the circumstances and for the reasons recorded above, the Director of Education, U.P. Allahabad is directed to make payment of family pension to the petitioner as per Rules, provided there is no other legal hurdle in making such payment, within a period of three months from the date of production of a certified copy of this order. With these directions, the writ petition is finally disposed of. No order as to costs. (M.M. Ghildiyal, J.) December 1, 2006 NCM: