Full Judgment
S.K. Katriar, J.
1. Heard Mr. Chandra Bhushan Das for the petitioner, and Mr. Raghunandan Prasad for the respondent.
2. According to the writ petition, the petitioner's late husband (Akhouri Govind Kumar) was in the services of the respondent and died in harness on 2.9.1993, while posted as Supervisor in the Water Board, Gaya. The petitioner complains before this Court that she has been allowed the benefit of family pension upto five years after the death of her husband. The Writ petition has therefore, been preferred for a direction to the respondents to allow the benefit of family pension till her death. The respondents have placed on record their counter affidavit and have opposed the writ petition.
3. I have perused the materials on record and considered the submissions of learned counsel for the parties. In exercise of the powers conferred by Section 3 of the Bihar Municipal Corporation (Amendment Act 1982) (Bihar Act 52 of 1982), the Governor of Bihar issued S.O. No. 1390, dated 11.11.1983, whereby he was pleased to establish with effect from the date of the notification a municipal corporation to be known as Gaya Municipal Corporation in the district of Gaya the area and boundary of which was the same as that of the then Gaya Municipality. Section 5 of the Bihar Municipal Corporation Amendment Act 1982 (Bihar Act 52 of 1982) published in the Bihar Gazette Extraordinary dated 29.4.1982, reads as follows :-
^^5- fcgkj vf/kfu;e 12] 1978 dh /kkjk 4 dk izfrLFkkiu-&m; vf/kfu;e dh /kkjk 4 ds LFkku ij fuEufyf[kr /kkjk izfrLFkkfir dh tk,xh %&&
^^4- iVuk uxj fu;e vf/kfu;e iVuk E;qfufliy dkjiksjs’ku ,s DV ds micU/kksa dks ykxw gksukA &&jkT; ljdkj jkti= esa vf/klwpuk }kjk /kkjk 2 ds v/khu LFkkfir fuxe ij iVuk E;qfufliy dkjiksjs’ku ,s DV] 1951 fcgkj vf/kfu;e 13] 1952 dh dksbZ ;k lHkh /kkjk,a vkSj mlds v/khu cukbZ xbZ fu;ekofy;ksa mu vuqdwyuksa ds vH;/khu tks u;s xfBr fu;e ds lEcU/k esa vko’;d gks ykxw dj ldsxhA**
4. In exercise of the powers conferred by Section 5 of the Bihar Act 52 of 1982, the Governor of Bihar was pleased to apply the following provisions of the Patna Municipal Corporation Act, 1951, inter alia, to the Gaya Municipal Corporation :-
(i) Sections 3 and 4 of Chapter I
(ii) Sections 5 to 7 and 9 to 23 of Chapter II;
(iii) All Sections of Chapters III to XXIX;
(iv) Sections 475 to 513 of Chapter XXX; and
(v) All Sections of Chapter XXXIX.
5. Section 61 of the 1951 Act confers powers on the State Government to make Rules for the items stated therein including sanction of pension and gratuity from the fund of the Corporation. In exercise of power conferred by Section 61 of the 1951 Act, the State Government framed the Patna Municipal Corporation's (Officers and Servants) Pension Rules 1986, Rule 35 of which is relevant in the present context and is set out hereinbelow for the facility of quick reference :-
'35. A family- pension not exceeding the amount specified in Rule 37 may be granted to the family off a corporation employee who dies whether while in service or after retirement after completion of not less than 20 years qualifying service for a period of 10 years :
Provided that the period of payment of family pension will in no case extend beyond a period of 5 years from the date on which the deceased employee retired or on which he would have retired on a superannuation pension in the normal course accordingly as the death takes place after retirement or while the employee in service.'
6. It is thus manifest on a combined reading of the relevant provisions that Section 5 of the Bihar Act 52 of 1982 confers powers on the Governor of Bihar to apply the provisions of the 1951 Act to the other Corporations in Bihar. The said Section 61 forms part of Chapter IV of the 1951 Act. Law is well settled that the Act has to be read with Rules framed thereunder. Therefore, Section 61 of the 1951 Act has to be read with Rule 35 which is set out hereinbelow :-
'61. Power to frame Rules for annuities and gratuities or for the creation of a provident or annuity fund.-(1) The State Government shall make Rules for the following :-
(a) sanction of Pension and Gratuity from the fund of the Corporation,
(b) the creation and management of Provident Fund, Annuity Fund and to compel the officers for making contribution thereto and to supplement such contribution out of the fund of the Corporation, and
(c) creation and management of Pension Fund for officers and servants of the Corporation.
(2) The Councillors at a meeting may from time to time and in accordance with such rules as may be framed by the Government, grant gratuity to any member of the family of their officers and servants who died from disease or injury contracted in discharge of their duties.'
The relevant provisions thus lay down in unmistakable terms that the family pension to the family of a deceased employee of the Gaya Municipal Corporation shall be admissible for a total period of five years.
7. I must deal with the contention advanced on behalf of the petitioner that the respondents issued office order bearing, memo No. 876, dated 31.8.1990 (Annexure-4) whereby it has been notified that the provisions of Chapter II of the Bihar Pension Rules 1950 are made applicable to the employees of the respondents. Relying on the same, counsel submits that the Bihar Pension Rules does not provide for family pension for a limited period. It is, therefore, submitted that in view of the said office order of the respondents the petitioner is entitled to life-long family pension. I regret my inability to accede to the submission pre-eminently for the reason that an office order cannot act in derogation of the statutory Rules which have been discussed hereinabove and govern the field which provides for family pension for a maximum period of five years. Secondly the respondents have stated in their counter affidavit that the aforesaid Rules are being uniformly followed and none has been given the benefit of family pension exceeding five years. Thirdly the respondents have further stated in the counter affidavit that the said office order (Annexure-4) was inadvertently issued and was never implemented.
8. I, therefore, do not find any merit in this writ petition. It is accordingly dismissed.