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2009 DIGILAW 1203 (JHR)

Malti Devi v. State of Jharkhand

2009-08-27

GYAN SUDHA MISRA, PRADEEP KUMAR

body2009
Order By Court.-This appeal has been preferred against the judgment and order dated 24.4.2009 passed by the learned Single . Judge in W.P.(S) No. 998 of 2007, whereby the learned Single Judge was pleased to dismiss the writ petition rejecting the claim of the petitioner claiming enhanced pensionary benefits on the basis of BA trained scale of her deceased husband which was denied to him during his life time. 2. The substance of the controversy leading up to the filing of this appeal is whether pensionary benefit could be claimed by the widow of the deceased Headmaster on the basis of BA trained pay scale or she has rightly been granted the pensionary benefit on the basis of the Matric trained pay scale, which her late husband was availing during his lifetime. 3. The claim of the petitioner-appellant rests on the premise that the petitioner's husband, although was I.A. untrained, he had been discharging the function as Headmaster till he sought voluntary retirement on 12.4.1982. 4. The case of the petitioner-appellant essentially is to the effect that as her late husband had acquired the qualification of BA trained on 24.9.1973 due to which he became eligible for conferment of the BA trained pay scale and even though he had not been conferred the benefit of BA trained scale during his life time, the pensionary benefits after his death, ought to be counted on the basis of that scale of B.A. trained. 5. This gave rise to a dispute between the petitioner-appellant and the respondents-authorities as the respondents authorities contended that the petitioner's husband had not completed sixteen years of service in order to claim the benefit of B.A. trained scale and he had already sought voluntary retirement from the service on 12.4.1982 by which time the petitioner's husband had not completed sixteen years of service which would have made him eligible to claim the scale of B.A. trained, for even though he was discharging the duty of Headmaster ever since 1953 he was merely an I.A. untrained and became B.A. trained for the first time in the year 1973. Thus, the services rendered by him prior to the year 1973 was of I.A. untrained on the date of his voluntary retirement. Thus, the services rendered by him prior to the year 1973 was of I.A. untrained on the date of his voluntary retirement. He had thus not completed the required sixteen years of service which could hold him eligible to claim the scale of B.A. trained, so as to infer that his widow would be eligible for pensionary benefits on the basis of B.A. trained scale. In addition, it was also pointed out by the learned G.P.-IV on behalf of the respondent-State, that the petitioner's deceased husband had not been in the continuous service as Headmaster in the School since he had left the service as Headmaster on 15.10.1974 to 5.10.1980 and was subsequently re-appointed by order dated 2.6.1981. Thus, he was not even in the continuous service of Headmaster for more than 10 months and when he was re-appointed in the year 1981, a clear condition was imposed that he would be entitled to the benefit of service only for the purpose of pensionary benefits. 6. In view of this condition, the counsel for the petitioner-appellant herein submitted that the petitioner's late husband having acquired qualification of BA trained in the year 1973 itself, he became eligible for the B.A. trained scale soon after he acquired the qualification. 7. We however do not find substance in this part of the argument for mere acquisition of qualification of BA trained was not enough for claiming the benefit of BA trained scale for more than one reason-firstly the petitioner-appellant although was functioning as Headmaster in the year 1953, he was merely an I.A. untrained and in between i.e. 15.10.1974 to 5.10.1980 he was also out of service. He however was re-appointed only in the year 1981 but by that time he had not acquired the eligibility of claiming B.A. trained scale since a Circular dated 18th December, 1984 had been issued laying down a condition that any Headmaster would be eligible for B.A. trained scale only if he has discharged sixteen years of continuous service, so as to enable him to claim the benefit of B.A. trained scale. The appellant's late husband admittedly did not fulfill this condition but in order to circumvent this impediment, the counsel for the appellant sought to resort to an escape route and submitted that the Circular itself envisages a condition that it would not be applicable on anyone who has been discharging the duties as Headmaster prior to 10.7.1969. It was, therefore, contended that the appellant's late husband had already been discharging the duties as Headmaster prior to 10.7.1969 and therefore he would be protected from the condition laid down in the Circular that a Headmaster claiming B.A. trained should have discharged sixteen years of service before he could claim BA trained scale. 8. This argument again is fraught with infirmity for the petitioner-appellant at the time of issuance of Circular had not acquired the status of a BA trained scale and although he might have acquired qualification and discharged duties as Headmaster prior to the year 1969. he had not been in the continuous service, since he had left the job as Headmaster but was subsequently re-appointed. Thus his length of service in the first place was liable to be counted from 2.6.1981 and, therefore, the saving Clause of the Circular obviously cannot ensure any benefit so as to grant him any protection that even though he had not completed sixteen years of service as Headmaster he should be granted the pensionary benefit of a BA trained scale. 9. Above everything, it cannot also be overlooked that the appellant's late husband knowing fully well that he had not completed sixteen years of service on the date when he sought voluntary retirement, he preferred to seek voluntary retirement. He, obviously, must have been aware that he would not be eligible for the benefit of B.A. trained scale since the controversy as to whether he would be eligible for B.A. trained scale did not get resolved even by that time while he was in service. Thus, the dispute as to whether the appellant's husband was eligible for B.A. trained scale or not finally remained unresolved as he had sought voluntary retirement without getting that dispute resolved and also expired in the year 2005. 10. Thus, the dispute as to whether the appellant's husband was eligible for B.A. trained scale or not finally remained unresolved as he had sought voluntary retirement without getting that dispute resolved and also expired in the year 2005. 10. Thus, the plea of the appellant's husband as to whether he at all could claim the pensionary benefits on the basis of BA trained scale never got adjudicated or resolved during his lifetime as also prior to his application seeking voluntary retirement. In that event if the respondents have computed the pensionary benefit of the deceased husband of the appellant ignoring the claim of BA trained scale, the same cannot be allowed on a hypothetical ground that the appellant's husband had to be held eligible for B.A. trained scale, although during his lifetime, it was not settled. 11. The appeal thus has no substance and consequently it is dismissed claiming benefit of the enhanced pension in view of the controversy, having not been resolved, during the lifetime of her husband.