Supreme Court of India
THE STATE OF BIHAR & ORS. versus RAJMATI DEVI & ANR. on 20 May 2022
284
SUPREME COURT REPORTS
[2022] 3 S.C.R.
A
THE STATE OF BIHAR & ORS.
v.
RAJMATI DEVI & ANR.
(Civil Appeal Nos. 3900-3901 of 2022)
BMAY 20, 2022
[M. R. SHAH AND B.V. NAGARATHNA, JJ.]
Pension – Family Pension – Entitlement to – Deceasedhusband of Respondent no.1, whether governed by the NewCContributory Pension Scheme of 2005 or the Old Pension Rules of1950 – Held: When the husband of Respondent no.1 came to beabsorbed in government service, the Old Pension Rules were alreadyabolished, and the New Pension Scheme was in existence – He was,therefore, governed by the New Pension Scheme which, however,did not provide for family pension – Respondent no.1 accordinglyDnot entitled to family pension – Bihar Pension Rules, 1950 – BiharGovernment Servant Contributory Pension Scheme, 2005.
Allowing the appeals, the Court
HELD:1. The husband of respondent No. 1 came to beEabsorbed in the government service in the year 2014 w.e.f.02.03.2009. Till 02.03.2009, he remained the employee of theBihar Research Society, of which he was an employee andworking. The Old Pension Rules, 1950 came to be abolished andthe New Contributory Pension Scheme came to be introducedw.e.f. 01.09.2005. Under the New Contributory Pension Scheme,Fthere is no provision for pension/family pension. As per theScheme, all those who are appointed after 31.08.2005 shall begoverned by the New Contributory Pension Scheme. Therefore,at the time when the husband of respondent No. 1, who died inthe year 2013, was absorbed, the Old Pension Rules wereGabolished and the New Contributory Pension Scheme was inexistence. As per the corrigendum issued in the appointmentorder and as per clause 6, the prior service rendered by theconcerned employee prior to his absorption shall not be treatedas a government service. Therefore, the husband of respondentH
No. 1 can be said to be a government servant and in governmentservice w.e.f. 02.03.2009 only. Therefore, the husband ofrespondent No. 1 was governed by the New Contributory PensionScheme under which there is no provision for the pension/familypension. Therefore, the High Court has committed a grave errorin directing the appellant to pay the family pension to respondentNo. 1 applying the Old Pension Rules, which were applicable priorto 31.08.2005. The aforesaid aspect has not been considered bythe High Court at all and the Single Judge simply consideredthat on the death of the husband of respondent No. 1, who died inharness while in service, respondent No. 1 is entitled to the familypension under family pension scheme. However, the High Courthas not at all considered that on coming into force the NewContributory Pension Scheme, no government employeeappointed after 31.08.2005 shall be entitled to any other benefitexcept under the New Contributory Pension Scheme. In that viewof the matter, respondent No. 1 shall not be entitled to the familypension under the Old Pension Rules, which were not applicableat the time when the husband of respondent No. 1 came to beabsorbed in the government service w.e.f. 02.03.2009.[Para 6][288-D-H; 289-A-C]
2. Accordingly, the judgments and orders passed by theSingle Judge as well as the Division Bench of the High Courtholding that respondent No.1 shall be entitled to the familypension under the Old Pension Rules are hereby quashed andset aside. It is observed and held that as the husband ofrespondent No. 1 was absorbed in the government service onlyw.e.f. 02.03.2009, he shall be governed by the New PensionScheme i.e., Bihar Government Servant Contributory PensionScheme, 2005. [Para 7][289-C-D]
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.3900-3901 of 2022.
From the Judgment and Order dated 11.04.2017 of the High Courtof Judicature at Patna in LPA No.1099 of 2016 and Order dated04.09.2017 in Civil Review No.334 of 2017.
Shivam Singh, Abhinav Singh, Manish Kumar, Advs. for theAppellants.
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AJayant K. Sud, ASG, Ms. Rachitta Rai, Ms. Alka Agrawal, Ms.Vimla Sinha, T. S. Sabarish, Ms. Gargi Khanna, Shantanu Sharma, RajBahadur Yadav, Advs. for the Respondents.
The Judgment of the Court was delivered by
M. R. SHAH, J.B
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1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 11.04.2017 passed by the Division Bench of the HighCourt of Judicature at Patna in Letters Patent Appeal No. 1099/2016,by which, the Division Bench of the High Court has dismissed the saidappeal preferred by the State and has confirmed the judgment and orderCdated 02.09.2015 passed by the learned Single Judge holding thatrespondent No. 1 being widow of the deceased employee would beentitled for grant 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 BiharDResearch Society, an autonomous society registered under Societies Act,as a peon. The said society was taken over by the Government of Biharvide Bihar Research Society (Taking Over) Act, 2007. By resolutiondated 31.08.2005, the State abolished the Old Pension Rules i.e., BiharPension Rules, 1950 and replaced the same with New Pension SchemeEi.e., Bihar Government Servant Contributory Pension Scheme, 2005,w.e.f. 01.09.2005. As per the New Pension Scheme, the employeesappointed after 31.08.2005 shall be governed by the new contributarypension scheme under which the government employees appointed after31.08.2005 shall not be entitled to the pension/family pension. The BiharResearch Society (Taking Over) Act, 2007 (hereinafter referred to asFthe Act, 2007) came into force on 02.03.2009 resulting in taking over ofthe Institute/Society where the husband of respondent No. 1 was working.The husband of respondent No. 1 died on 23.03.2013 while in service.The employees of the aforesaid Society were taken into governmentservice vide order dated 25.03.2014 w.e.f. 02.03.2009. A corrigendumGcame to be issued by the State of Bihar amending the employment orderdated 25.03.2014 substituting the word “appointed” with the word“absorbed”. Clause 6 was inserted by the corrigendum stating that priorto date of acquisition, the service would not be calculated as governmentservice. That respondent No. 1 filed the writ petition before the HighCourt praying for family pension and other retiral benefits. By judgmentH
and order dated 02.09.2015, the learned Single Judge allowed the saidwrit petition and directed the State to pay the family pension to respondentNo. 1 from the date of her husband’s death i.e., 23.03.2013.
2.1 Feeling aggrieved and dissatisfied with the judgment and orderpassed by the learned Single Judge allowing the family pension, the Statepreferred the Letters Patent Appeal before the Division Bench of theHigh Court. By the impugned judgment and order, the High Court hasdismissed the said appeal and has confirmed the judgment and orderpassed by the learned Single Judge, which has given rise to the presentappeals.
3. Learned counsel appearing on behalf of the appellant hasvehemently submitted that pension and family pension was available tothe employees of the State Government who were governed by the OldPension 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 PensionRules were abolished and the New Contributory Pension Scheme wasreplaced. It is submitted that therefore, the Old Pension Rules were notapplicable to the husband of respondent No. 1 and therefore, respondentNo. 1 shall not be entitled to the family pension under the Old PensionRules.
3.1 It is submitted that the Old Pension Rules were abolished on01.09.2005 and thereafter, the New Pension Scheme came into force,therefore, New Pension Scheme was applicable to all the employees ofthe State Government, who were appointed/absorbed on or after01.09.2005.
3.2 It is submitted that a corrigendum dated 22.06.2015 was alsoissued by the Government making it abundantly clear that the term ofGovernment service will be calculated only from the cut-off date i.e.,02.03.2009 and the services of the adjusted employees, prior to date ofacquisition in Bihar Research Society shall not be calculated as agovernment service. It is submitted that in that view of the matter, theHigh Court has committed a grave error in allowing the family pensionapplying the Old Pension Rules, 1950.
3.3 Making the above submissions, it is prayed to allow the presentappeals.
4. The present appeals are vehemently opposed by Ms. RachittaRai, learned counsel appearing on behalf of respondent No. 1. It is AB
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Avehemently submitted that the husband of respondent No. 1 was absorbedin the State Government service w.e.f. 02.03.2009 by way of adjustmentvide Section 5 of the Act, 2007. It is submitted that it was not a freshappointment and therefore, his services were to be treated as continuous.
4.1 It is submitted that the husband of respondent No. 1 died inBharness and while in service and therefore, as per clause 7(1) to thefamily pension scheme, on the death of her husband who died while inservice, respondent No. 1 was entitled to the family pension and thefamily pension scheme being beneficial scheme, both, the learned SingleJudge as well as the Division Bench of the High Court have rightly heldthat respondent No. 1 is entitled to the benefit of the family pensionCscheme.5. We have heard learned counsel appearing on behalf of both theparties at length.
6. At the outset, it is required to be noted that the husband ofDrespondent No. 1 came to be absorbed in the government service in theyear 2014 w.e.f. 02.03.2009. Till 02.03.2009, he remained the employeeof the Bihar Research Society, of which he was an employee andworking. The Old Pension Rules, 1950 came to be abolished and theNew Contributory Pension Scheme came to be introduced w.e.f.01.09.2005. Under the New Contributory Pension Scheme, there is noEprovision for pension/family pension. As per the Scheme, all those whoare appointed after 31.08.2005 shall be governed by the New ContributoryPension Scheme. Therefore, at the time when the husband of respondentNo. 1, who died in the year 2013, was absorbed, the Old Pension Ruleswere abolished and the New Contributory Pension Scheme was inFexistence. As per the corrigendum issued in the appointment order andas per clause 6, the prior service rendered by the concerned employeeprior to his absorption shall not be treated as a government service.Therefore, the husband of respondent No. 1 can be said to be agovernment servant and in government service w.e.f. 02.03.2009 only.Therefore, the husband of respondent No. 1 was governed by the NewGContributory Pension Scheme under which there is no provision for thepension/family pension. Therefore, the High Court has committed a graveerror in directing the appellant to pay the family pension to respondentNo. 1 applying the Old Pension Rules, which were applicable prior to31.08.2005. The aforesaid aspect has not been considered by the HighHCourt 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 inservice, respondent No. 1 is entitled to the family pension under familypension scheme. However, the High Court has not at all considered thaton coming into force the New Contributory Pension Scheme, nogovernment employee appointed after 31.08.2005 shall be entitled toany other benefit except under the New Contributory Pension Scheme.In that view of the matter, respondent No. 1 shall not be entitled to thefamily pension under the Old Pension Rules, which were not applicableat the time when the husband of respondent No. 1 came to be absorbedin the government service w.e.f. 02.03.2009.
7. In view of the above discussion and for the reasons statedabove, the impugned judgment(s) and order(s) passed by the High Courtdeserve(s) to be quashed and set aside. Accordingly, the judgments andorders passed by the learned Single Judge as well as the Division Benchof the High Court holding that respondent No. 1 shall be entitled to thefamily pension under the Old Pension Rules are hereby quashed and setaside. It is observed and held that as the husband of respondent No. 1was absorbed in the government service only w.e.f. 02.03.2009, he shallbe governed by the New Pension Scheme i.e., Bihar Government ServantContributory Pension Scheme, 2005. The present appeals are allowed,accordingly. No costs.
Bibhuti Bhushan Bose
Appeals allowed.
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