Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 39003901 OF 2022
The State of Bihar & Ors. ..Appellant (S)
Versus
Rajmati Devi & Anr. ..Respondent (S)
J U D G M E N T
M. R. Shah, J.
1.
Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 11.04.2017 passed by the
Division Bench of the High Court of Judicature at Patna in
Letters Patent Appeal No. 1099/2016, by which, the
Division Bench of the High Court has dismissed the said
appeal preferred by the State and has confirmed the
judgment and order dated 02.09.2015 passed by the
learned Single Judge holding that respondent No. 1 being
widow of the deceased employee would be entitled for grant
Signature Not Verified
Digitally signed by
Jatinder Kaur
Date: 2022.07.15
17:14:53 IST
Reason:
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of family pension from the date of death of her husband,
the State of Bihar has preferred the present appeals.
2. The husband of respondent No. 1 herein joined the Bihar
Research Society, an autonomous society registered under
Societies Act, as a peon. The said society was taken over
by the Government of Bihar vide Bihar Research Society
(Taking Over) Act, 2007. By resolution dated 31.08.2005,
the State abolished the Old Pension Rules i.e., Bihar
Pension Rules, 1950 and replaced the same with New
Pension Scheme i.e., Bihar Government Servant
Contributory Pension Scheme, 2005, w.e.f. 01.09.2005. As
per the New Pension Scheme, the employees appointed
after 31.08.2005 shall be governed by the new
contributary pension scheme under which the government
employees appointed after 31.08.2005 shall not be entitled
to the pension/family pension. The Bihar Research Society
(Taking Over) Act, 2007 (hereinafter referred to as the Act,
2007) came into force on 02.03.2009 resulting in taking
over of the Institute/Society where the husband of
respondent No. 1 was working. The husband of respondent
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No. 1 died on 23.03.2013 while in service. The employees
of the aforesaid Society were taken into government service
vide order dated 25.03.2014 w.e.f. 02.03.2009. A
corrigendum came to be issued by the State of Bihar
amending the employment order dated 25.03.2014
substituting the word “appointed” with the word
“absorbed”. Clause 6 was inserted by the corrigendum
stating that prior to date of acquisition, the service would
not be calculated as government service. That respondent
No. 1 filed the writ petition before the High Court praying
for family pension and other retiral benefits. By judgment
and order dated 02.09.2015, the learned Single Judge
allowed the said writ petition and directed the State to pay
the family pension to respondent No. 1 from the date of her
husband’s death i.e., 23.03.2013.
2.1 Feeling aggrieved and dissatisfied with the judgment and
order passed by the learned Single Judge allowing the
family pension, the State preferred the Letters Patent
Appeal before the Division Bench of the High Court. By the
impugned judgment and order, the High Court has
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dismissed the said appeal and has confirmed the judgment
and order passed by the learned Single Judge, which has
given rise to the present appeals.
3. Learned counsel appearing on behalf of the appellant has
vehemently submitted that pension and family pension
was available to the employees of the State Government
who were governed by the Old Pension Rules. It is
submitted that when the husband of respondent No. 1 was
absorbed in the year 2014 w.e.f. 02.03.2009, the Old
Pension Rules were abolished and the New Contributory
Pension Scheme was replaced. It is submitted that
therefore, the Old Pension Rules were not applicable to the
husband of respondent No. 1 and therefore, respondent
No. 1 shall not be entitled to the family pension under the
Old Pension Rules.
3.1 It is submitted that the Old Pension Rules were abolished
on 01.09.2005 and thereafter, the New Pension Scheme
came into force, therefore, New Pension Scheme was
applicable to all the employees of the State Government,
who were appointed/absorbed on or after 01.09.2005.
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3.2 It is submitted that a corrigendum dated 22.06.2015 was
also issued by the Government making it abundantly clear
that the term of Government service will be calculated only
from the cutoff date i.e., 02.03.2009 and the services of
the adjusted employees, prior to date of acquisition in
Bihar Research Society shall not be calculated as a
government service. It is submitted that in that view of the
matter, the High Court has committed a grave error in
allowing the family pension applying the Old Pension
Rules, 1950.
3.3 Making the above submissions, it is prayed to allow the
present appeals.
4. The present appeals are vehemently opposed by Ms.
Rachitta Rai, learned counsel appearing on behalf of
respondent No. 1. It is vehemently submitted that the
husband of respondent No. 1 was absorbed in the State
Government service w.e.f. 02.03.2009 by way of
adjustment vide Section 5 of the Act, 2007. It is submitted
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that it was not a fresh appointment and therefore, his
services were to be treated as continuous.
4.1 It is submitted that the husband of respondent No. 1 died
in harness and while in service and therefore, as per
clause 7(1) to the family pension scheme, on the death of
her husband who died while in service, respondent No. 1
was entitled to the family pension and the family pension
scheme being beneficial scheme, both, the learned Single
Judge as well as the Division Bench of the High Court
have rightly held that respondent No. 1 is entitled to the
benefit of the family pension scheme.
5. We have heard learned counsel appearing on behalf of
both the parties at length.
6.
At the outset, it is required to be noted that the husband
of respondent No. 1 came to be absorbed in the
government service in the year 2014 w.e.f. 02.03.2009. Till
02.03.2009, he remained the employee of the Bihar
Research Society, of which he was an employee and
working. The Old Pension Rules, 1950 came to be
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abolished and the New Contributory Pension Scheme came
to be introduced w.e.f. 01.09.2005. Under the New
Contributory Pension Scheme, there is no provision for
pension/family pension. As per the Scheme, all those who
are appointed after 31.08.2005 shall be governed by the
New Contributory Pension Scheme. Therefore, at the time
when the husband of respondent No. 1, who died in the
year 2013, was absorbed, the Old Pension Rules were
abolished and the New Contributory Pension Scheme was
in existence. As per the corrigendum issued in the
appointment order and as per clause 6, the prior service
rendered by the concerned employee prior to his
absorption shall not be treated as a government service.
Therefore, the husband of respondent No. 1 can be said to
be a government servant and in government service w.e.f.
02.03.2009 only. Therefore, the husband of respondent
No. 1 was governed by the New Contributory Pension
Scheme under which there is no provision for the
pension/family pension. Therefore, the High Court has
committed a grave error in directing the appellant to pay
the family pension to respondent No. 1 applying the Old
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Pension Rules, which were applicable prior to 31.08.2005.
The aforesaid aspect has not been considered by the High
Court at all and the learned Single Judge simply
considered that on the death of the husband of respondent
No. 1, who died in harness while in service, respondent No.
1 is entitled to the family pension under family pension
scheme. However, the High Court has not at all considered
that on coming into force the New Contributory Pension
Scheme, no government employee appointed after
31.08.2005 shall be entitled to any other benefit except
under the New Contributory Pension Scheme. In that view
of the matter, respondent No. 1 shall not be entitled to the
family pension under the Old Pension Rules, which were
not applicable at the time when the husband of respondent
No. 1 came to be absorbed in the government service w.e.f.
02.03.2009.
7. In view of the above discussion and for the reasons stated
above, the impugned judgment(s) and order(s) passed by
the High Court deserve(s) to be quashed and set aside.
Accordingly, the judgments and orders passed by the
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learned Single Judge as well as the Division Bench of the
High Court holding that respondent No. 1 shall be entitled
to the family pension under the Old Pension Rules are
hereby quashed and set aside. It is observed and held that
as the husband of respondent No. 1 was absorbed in the
government service only w.e.f. 02.03.2009, he shall be
governed by the New Pension Scheme i.e., Bihar
Government Servant Contributory Pension Scheme, 2005.
The present appeals are allowed, accordingly. No costs.
…………………………………J.
(M. R. SHAH)
………………………………J.
(B.V. NAGARATHNA)
New Delhi,
May 20, 2022
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