By the Court.—Heard learned counsel.

2. This Special Appeal under the Rules of the Court has been filed against the impugned order dated 16th July, 2002 passed by learned Single Judge in Writ Petition No. 396 (S/S) of 2002.

3. The factual matrix of the case is that the husband, of the petitioner/respondent, i.e Poorvideen was working as a Class IV employee in G.M., H.M.K.D Inter College, Mohan District-Unnao. He retied 31.1.1981 and later on, died on 25.5.1999. It is the admitted case that the husband of the petitioner/respondent was being paid pension after retirement. However, after death of husband of petitioner/respondent the pension was stopped, and application moved for family pension was rejected by the Deputy Director of Education (Madhyamik), VIth Region, Lucknow vide order dated 8.11.2001.

4. Learned Single Judge allowed the writ petition filed for payment of family pension on the ground that the cut off date mentioned in the Government Order dated 24.2.1989 was 1.1.1989 i.e. prior to 25.5.1999, the date on which husband of petitioner/respondent died. The ground taken by the Deputy Director of Education (Madhyamik), VIth Region, Lucknow is that under Government Order dated 24.2.1989 as modified, extending the benefit of pension to family members of deceased employee, cannot be given to be surviving spouse.

5. The petitioner/respondent challenged the Government Order dated 24.2.1989 which was entertained by this Court on the strength of an earlier judgment in the case of Smt. Shanti Devi v. State of U.P. and others, [2001]2 UPLBEC 1393. Thus, the learned Single Judge, allowed the writ petition and directed for the payment of family pension to the surviving spouse of the deceased employee. It is also borne out that inspite of repeated opportunity, no counter-affidavit was filed by the opposite party before the learned Single Judge, hence the learned Single Judge proceeded to decide the writ petition finally keeping in view that the plight of the widow of the deceased employee who is running from pillar to post for payment of family pension after death of her husband and is entitled to avail the family pension.

6. Admittedly, family pension was admissible to the dependent of the deceased employee who retired prior to 31.1.1989. Learned Single Judge, noticed the earlier judgment of the Court and recorded a finding that since pension was admissible to the husband of petitioner/respondent, it cannot be denied at a later stage. A finding has further been recorded that the Government Order dated 24.2.1989 shall not be applicable to the Intermediate Colleges.

7. The finding recorded by the learned Single Judge does not appear to be incorrect. Once the husband of the petitioner/respondent is entitled to pension, and he was being paid pension till 1999 then any Government Order or decision taken by the State Government shall not come in the way in grant of family pension to the widow of the deceased employee. Their Lordship of the Supreme Court in a plethora of judgments have held that pension is not a bounty rest on the mercy of the Government, but it is a statutory right available in lieu of services rendered by the employee. It is also well-settled that such a right constitutes “property” and any interference will be a breach of Article 31(A) of the Constitution and the State cannot by an executive order curtail or abolish altogether the right of the public servant to receive pension.

8. In a recent case of State of Jharkhand and others v. Jitendra Kumar Srivastava, 2013 SC 3383, their Lordship of the Supreme Court considering earlier decisions of the Hon’ble Supreme Court on the point in issue has held:

“7. It is an accepted position that gratuity and pension are not the bounties. An employee earns these benefits by dint of his long, continuous, faithful and un-blemished service. Conceptually it is so lucidly described in D.S. Nakara and others v. Union of India, MANU/SC/0237/1982 : (1983) 1 SCC 305, by Justice D.A.