Entitlement to family pension as per government orders and the principle that only realistic cost of litigation should be awarded.

Siddharth, J.

1. Heard Sri B.L. Verma, learned counsel for the petitioner and Sri Anand Yadav, holding brief of Shri Nisheeth Yadav learned counsel for the respondents. The petitioner has filed the above noted writ petition praying for issuance of writ of mandamus directing the opposite parties to pay the family pension and its arrears to the petitioner.

2. The petitioner's case is that her husband late Samar Bahadur Singh, was assistant teacher in Primary School in Gyanpur in the year 1973, he died while in service on 17.4.1973. Petitioner made an application for the grant of family pension, to the opposite party No. 3 after obtaining due sanction from the opposite party Nos. 1 and 2. Pension of Rs. 16 per month was sanctioned to her which was subsequently enhanced to Rs. 258 per month as per letter dated 25.11.1992 of respondent No. 2 with retrospective effect from 18.4.1972.

3. The difference in the family pension paid to the petitioner from 18.4.1993 to 1991 worked out to Rs. 50,339.70, on the basis of letter dated 7.4.1994 of opposite party No. 2. The opposite party No. 3 stopped the payment of arrears of family pension to the petitioner by the letter dated 24.6.1994. The respondent No. 4 sent letter to the respondent No. 2 stating that he has shown the date of death of Samar Bhadur Singh husband of the petitioner, as 17.4.1993 and he was appointed on 26.11.1962, therefore, his total service comes to around thirty years, but in his letter he has mentioned the total period of service as ten years, four months and twenty one days only and it appears that date of death has wrongly been mentioned by him and report was required to be submitted by the respondent No. 2. Thereafter family pension of the petitioner was stopped and, therefore, after making repeated representations before the respondents, she has approached this Court by way of this petition.

4. A counter-affidavit dated 29.10.1999 was filed on behalf of respondent No. 2 stating that at the time of his death, late Samar Bahadur Singh had completed service of only ten years four months and twenty one days when he was required to complete minimum service of twenty years. Therefore, petitioner would not become entitled for family pension. It was further stated that due to some mistake family pension of Rs. 16 was sanctioned to the petitioner which was revised from December 1992 to 25.11.1996 @ Rs. 259 when she was not entitled to the same. The difference amount of pension payable to the petitioner was Rs. 35,430 and not Rs. 50,339.50 as stated by the petitioner. The family pension of the petitioner was stopped from 25.3.1994. The respondents have brought on record the copy of the letter dated 28.11.1996 issued by the respondent No. 4, stating that he has informed the Basic Shiksha Adhikari that petitioner is being denied the family pension because her deceased husband did not complete twenty years' of qualifying service.

5. The petitioner has filed rejoinder affidavit stating that vide Government order dated 31.3.1982 issued by the State Government, with effect from 1.10.1981 family pension of the employees of the educational institutions is payable after completion of seven years of service as per Clause 4 of the Government order. The aforesaid Government order is annexed as R.A.-1 to the rejoinder affidavit.

6. Petitioner has also brought on record the another Government order dated 16.6.1985 as Annexure-R.A.-2 which provides that family pension as per Government order dated 31.3.1982, would be payable to the dependents of the deceased teacher irrespective of the facts whether he died prior to 1.10.1981 or after the said date.

7. From the above facts and Government orders brought on record it is clear that petitioner was entitled to grant of family pension, which was initially paid to her but on account of the letter dated 24.6.1994 of the respondent No. 4 to the respondent No. 2 the same was denied to her.

8. This Court in the case of Sajida Begum v. Secretary, Ba