THE STATE OF BIHAR & ORS.versusRAJMATI DEVI & ANR.

284                      [2022]
              SUPREME COURT     3 S.C.R. 284
                             REPORTS                    [2022] 3 S.C.R.


A                     THE STATE OF BIHAR & ORS.
                                      v.
                          RAJMATI DEVI & ANR.
                    (Civil Appeal Nos. 3900-3901 of 2022)
B                               MAY 20, 2022
              [M. R. SHAH AND B.V. NAGARATHNA, JJ.]
            Pension – Family Pension – Entitlement to – Deceased
      husband of Respondent no.1, whether governed by the New
C     Contributory Pension Scheme of 2005 or the Old Pension Rules of
      1950 – Held: When the husband of Respondent no.1 came to be
      absorbed in government service, the Old Pension Rules were already
      abolished, 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 accordingly
D     not entitled to family pension – Bihar Pension Rules, 1950 – Bihar
      Government Servant Contributory Pension Scheme, 2005.
           Allowing the appeals, the Court
             HELD:1. The husband of respondent No. 1 came to be
E     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 abolished and
      the New Contributory Pension Scheme came to be introduced
      w.e.f. 01.09.2005. Under the New Contributory Pension Scheme,
F
      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
G     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
H
                                     284
  THE STATE OF BIHAR & ORS. v. RAJMATI DEVI & ANR.                     285


No. 1 can be said to be a government servant and in government         A
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     B
No. 1 applying the Old 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 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
                                                                       C
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    D
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.
[Para 6][288-D-H; 289-A-C]
      2. Accordingly, the judgments and orders passed by the           E
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           F
w.e.f. 02.03.2009, he shall be governed by the New Pension
Scheme i.e., Bihar Government Servant Contributory Pension
Scheme, 2005. [Para 7][289-C-D]
      CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.3900-
3901 of 2022.
                                                                       G
      From the Judgment and Order dated 11.04.2017 of the High Court
of Judicature at Patna in LPA No.1099 of 2016 and Order dated
04.09.2017 in Civil Review No.334 of 2017.
      Shivam Singh, Abhinav Singh, Manish Kumar, Advs. for the
Appellants.                                                            H
286            SUPREME COURT REPORTS                           [2022] 3 S.C.R.


A           Jayant K. Sud, ASG, Ms. Rachitta Rai, Ms. Alka Agrawal, Ms.
      Vimla Sinha, T. S. Sabarish, Ms. Gargi Khanna, Shantanu Sharma, Raj
      Bahadur Yadav, Advs. for the Respondents.
            The Judgment of the Court was delivered by
            M. R. SHAH, J.
B
             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
C     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 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
D     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
E     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
F     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 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
G     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
H
   THE STATE OF BIHAR & ORS. v. RAJMATI DEVI & ANR.                            287
                    [M. R. SHAH, J.]

and order dated 02.09.2015, the learned Single Judge allowed the said          A
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           B
High Court. By the impugned judgment and order, the High Court has
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             C
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       D
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,             E
therefore, New Pension Scheme was applicable to all the employees of
the State Government, who were appointed/absorbed on or after
01.09.2005.
      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           F
Government 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 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          G
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            H
288            SUPREME COURT REPORTS                          [2022] 3 S.C.R.


A     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 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
B     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
C     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
D     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 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
E     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
F     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
G     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 Pension Rules, which were applicable prior to
      31.08.2005. The aforesaid aspect has not been considered by the High
H     Court at all and the learned Single Judge simply considered that on the
   THE STATE OF BIHAR & ORS. v. RAJMATI DEVI & ANR.                           289
                    [M. R. SHAH, J.]

death of the husband of respondent No. 1, who died in harness while in        A
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.
                                                                              B
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         C
deserve(s) to be quashed and set aside. Accordingly, the judgments and
orders passed by the 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        D
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.
                                                                              E
Bibhuti Bhushan Bose                                       Appeals allowed.




                                                                              F




                                                                              G




                                                                              H