Decided on November 26,2012

Uma Shastri Appellant


KALYAN JYOTI SENGUPTA, J. - (1.) BY this writ petition, the order dated 03.09.2004 has been challenged.
(2.) THE short fact of this case is that the petitioner being widow of Army personnel was enjoying pension from Defence sources as well as from the State Government of Uttarakhand. However, the Uttarakhand Government has withdrawn the pension, granted earlier, by the impugned order. The petitioners husband served successfully in the Defence establishment from 07.11.1987 to 09.03.1989 and thereafter 10.04.1991 to 21.09.1991. After being discharged from Army services, on the ground of disability, the petitioners husband was employed as Assistant Teacher in the State of Uttarakhand, Okhalkanda, Block Patrani, District Nainital. The said institution is being run and recognized in accordance with the provision of Basic Education Act and he, however, in the course of service had died on 20.04.1999. In view of the death, the petitioner being widow and nominee was entitled to receive post retirement dues and also the family pension. This grant of family pension, in terms of the Rules, is not disputed at all. The learned counsel for the petitioner submits that by the impugned order taking note of the Administrative order of the then Uttar Pradesh Government dated 24.08.1966, grant of pension has been withdrawn. He further submits that this order is absolutely illegal and having no basis at all. There is no Rule or any order disqualifying the petitioner to get widow pension on account of receiving the pension from Defence sources. The learned counsel for the respondents on the other hand supports the order and submits that the petitioner cannot get double benefit from two sources and on that principle, the order has been recalled.
(3.) I am of the view that the reasoning howsoever is convincing. The Executive Authority cannot recall any order without having any force of law or any legal basis. The reason mentioned in the impugned order appears to be an Administrative order of the undivided Uttar Pradesh Government. The law sometimes, if adopted after bifurcation of the State, can be applied but not the Administrative order. Therefore, I accept the arguments of the learned counsel for the petitioner that the impugned order is having no basis. The same is, accordingly, set aside. I direct the respondents to pay all the arrears of the pension which was payable, but for the impugned order, he shall go on paying. Apart from this, I am of the view this order was passed without having heard the petitioner and it is in complete violation of principle of natural justice, for any right created under the law cannot be taken away without giving any hearing. On that ground also this impugned order does not stand. Therefore, writ petition succeeds and allowed.;

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