IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1913 of 2009 VIKAS KUMAR VIMAL Versus THE STATE OF BIHAR & ORS ----------- 2 9/2/2009 Heard counsel for the parties. Prayer in this writ application is to quash the order of Accountant General dated 16.10.2008 (Annexure-3) and its consequential order dated 25.10.2008 issued by the Treasury Officer, Patna whereby and whereunder, it has been held that the petitioner upon completion of 21 years of age will no longer be entitled for payment of any amount of family pension which he had been getting on account of death of his mother Late Kiran Kumari, a retired Assistant Teacher on 26.4.1991. The case in brief of the petitioner is that his mother an Assistant Teacher in a government school died in harness on 26.4.91 while he was aged about four years and was getting family pension upto 21.8.2008 when he had completed 21 years of age. However the office of the Accountant General which had earlier authorized family pension to the 2 petitioner had passed the impugned order restricting the payment of family pension only upto 21 years of the age of the petitioner by interpreting the provisions of the resolution of the State Government dated 22.12.1999. Assailing the reasons given in the aforesaid impugned order and its consequential order dated 25.10.2008 stopping payment of family pension on completion of 21 years of age of the petitioner as also seeking to make some recovery of Rs. 3853.00 being excess amount of family for the period of two months towards such family pension, Mr. Laxmi Narain Das, learned counsel for the petitioner submits that once in the Government decision as contained in resolution no. 11556 dated 22.12.1999 (Annexure-1) it was provided that the eligibility condition as also the maximum age for grant of family pension would stand enhanced from 21 years to 25 years, the benefit of the same was also to be extended to the petitioner because he had been drawing family pension as on 3 22.12.1999. He has further placed reliance on the subsequent clarification made by the Finance Department in his resolution No. 11558 dated 22.12.1999 to contend that when all the benefits have been made retrospective even for calculation and payment of the family pension sanctioned prior to 1.1.1996, the logical outcome of reading of the aforesaid governmental decision would be that even the benefit of enhanced age of family pension of the petitioner would continue till attaining of his age of 25 years. In the opinion of this Court, the aforesaid attractive submission of Mr. Das must be rejected on the simple proposition of law that retrospectivity to a government decision can only be given if the government has taken a conscious decision to make the same operative from a particular date. In the matter of fixation of pay or pension and payment thereof a cut off date has to be necessarily prescribed by the government. In the present case the pay revision committee had made a cut off date i.e, 1.1.1996 for 4 the purpose of fixation of pay and/or pension and 1.4.1997 for the actual payment. Obviously, these monetary benefits therefore has to be made as per government policy, and the enhancement of age for payment of family pension from 21 years to 25 years will also have relevance with date of death of such pensioner. As a matter of fact this aspect of the matter is clearly borne out from the following provisions of the government resolution dated 22.12.1999 : - “…………………………………………………………………………… 2- izHkko fd frfFk %& ¼i½ bl ladYi esa fufgr isa'ku ,oa minku ds iqujhf{kr izko/kku oSls ljdkjh lsodksa ds ekeys esa ykxw gksxsa tks fnukad 1 tuojh 1996 dks vFkok mlds ckn lsok fuo`r gksrs gS vFkok ftudh e`R;q fnukad 1 tuojh 1996 dks vFkok mlds ckn lsokdky esa gqbZ gksA fnukad 1 tuojh 1996 ds izHkko ls isa'ku dk iqujh{k.k dsoy oSpkfjd :i ls fd;k tk;sxk ,oa isa'ku iqujh{k.k dk vkfFkZd ykHk fnukad 1 vizsy 1997 ds izHkko ls gh vuqekU; gksxkA bldk vFkZ ;g gS fd 1 tuojh 1996 ls 31 ekpZ 1997 dh vof/k ds fy, fdlh izdkj dk cdk;k ns; ugha gksxkA** 3- ------------------------------------------------------------------- 4- ------------------------------------------------------------------- 5- ikfjokfjd isa'ku %& ¼i½ foRr foHkkx dh ladYi la[;k 1853 fnukad 19-4-90 esa vaxhd`r LySc i}fr dks lekIr djrs gq, vc ljdkjh lsod dh lsok fuo`fr dh frfFk vFkok lsokdky esa ljdkjh lsod dh e`R;q dh frfFk dks izkIr ifjyfC/k;ksa dh 30 izfr'kr] ikfjokfjd isa'ku dh jkf'kh gksxhA ¼ii½ ikfjokfjd isa'ku dh U;wure jkf'k & ikfjokfjd isa'ku dh U;wure jkf'k 375 :i;s ds LFkku ij 1275 :i;s izfrekg gksxh rFkk vf/kdre jkf'k foRr foHkkx ds ladYi la[;k 660 fo0 fnukad 08-2-1999 }kjk iqujhf{kr osrueku dh vf/kdre osru dh 30 izfr'kr jkf'k gksxhA ¼iii½ ikfjokfjd isa'ku ds fu/kkZj.k esa ;g lqfuf'pr fd;k tk;sxk fd ljdkjh lsod ds in ds fy, fu/kkZfjr u;s osrueku ds izkjfEHkd osru ds 30 izfr'kr ls de ikfjokfjd isa'ku dh jkf'k ugha gksxhA ¼iv½ ikfjokfjd isa'ku dh Lohd`fr gsrq ifjokj dh ifjHkk"kk& foRr foHkkx ds Kkikad 9505 fo0 fnukad 3 vDVwcj 5 1964 }kjk ifjpkfyr fcgkj jkT; ljdkjh deZpkjh ifjokj isa'ku ;kstuk 1964 dh dafMdk 7 dh midafMdk (ii)dk vkaf'kd la'kks/ku djrs gq, lE;d~ fopkjksijkUr jkT; ljdkj us ;g fu.kZ; fy;k gS fd dsUnz ljdkj }kjk viuk;s x;s orZeku fu;eksa ds vuqlkj ikfjokfjd isa'ku dh Lohd`fr gsrq ifjokj dh ifjHkk"kk esa & ¼d½ thfor ekrk ,oa firk tks ljdkjh lsod ij iw.kZ :isu vkfJr gksa dks Hkh lfEefyr fd;k tk; c'krsZ fd ljdkjh lsod e`R;ksijkUr viuh fo/kok vFkok dksbZ lUrku thfor ugha NksM+ x;k gks rFkk ekrk firk dh vk; 2]550 :i;s ls vf/kd ugha gks] rFkk ¼[k½ iq=@iq=h ftlesa fo/kok ifjR;drk iq=h lEefyr gS] dks mudh 25 o"kksZa dh vk;q iwjh djus rd vFkok iq=h ds ekeyksa esa fookg@iqufoZokg dh frfFk rd tks Hkh igys gks] dks Hkh lfEefyr fd;k tk;A ikfjokfjd isa'ku dh Lohd`fr dh orZeku izfdz;k;sa ,oa vU; 'krsZa vifjofrZr jgsxhA** In that view of the matter, the government decision as contained in Resolution No. 11556 dated 22.12.1999 (Annexure-1) enhancing the age from 21 years to 25 years would be made applicable only for such pensioner whose death takes place on or after 1.1.1996. Admittedly, mother of the petitioner had died on 26.4.1991 and on the basis of such date of death of his mother the petitioner could have been paid the amount of family pension only up to the age of 21 years. In that view of the matter, the petitioner cannot claim for payment of family pension up to his age of 25 years on the basis of any decision of the Central Government vide Annexure-4 series 6 in as much as the State Government of Bihar has come out with its own decisions in the two resolutions dated 22.12.1999. As noted above the resolution of the State Government in paragraph no. 2 clearly prescribes that the benefit of revised pension including family pension would be applicable to such government servants who had retired or died on or after 1.1.1996. That being so, this writ application being wholly misconceived is hereby dismissed. (Mihir Kumar Jha, J.) Abhay Kumar