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2010 DIGILAW 765 (CAL)

Ashrunehar Bibi v. STATE OF WEST BENGAL

2010-07-08

DEBASISH KAR GUPTA

body2010
JUDGMENT ( 1. ) THE Judgment of the Court was as follows : None appears on behalf of the respondents at the time of second call of this matter. No accommodation is prayed for. ( 2. ) THIS writ application is directed against an order dated December 18/19, 2008 passed by the respondent No. 2 rejecting the claim of the petitioners for granting benefits under the West Bengal Recognized Non- Government Educational Institution Employees' (Death-cum-Retirement Benefit) Scheme, 1981 (hereinafter referred to as the said Scheme) arising out of the services of their husband, namely, Md. Omar Ali, who was an Assistant Teacher of Mohanpur Nawhati Shah Reazuddin Smriti Vidyalaya (High School), Amadpur, Bardhaman. The facts of the case/in a nutshell, are as follows : The husband of the petitioners, namely, Md. Omar All, was an Assistant Teacher of the aforesaid school. He died in harness on October 19, 1979. The petitioners prayed for granting benefits under the said Scheme. The above prayer of the petitioners was not considered by the respondent-authority. They filed an application under Article 226 of the Constitution of India, bearing W.P. No. 20622(W) of 2007 (In Re :Ashrunehar Bibi and Another v. The State of West Bengal and Ors.) and the same was disposed of on May 7, 2008 with a direction upon the respondent No. 2 to consider their prayer. Pursuant to the above direction, the respondent No. 2 passed the impugned order. ( 3. ) HAVING heard the learned Counsel appearing for the petitioners as also considering the facts and circumstances of this case, I find that the claim of the petitioners for granting benefits under the said Scheme was rejected on the following grounds : i) The deceased husband of the petitioners rendered service in the school under reference for a period less than 20 years. ii) Circular No. 163 Edn. (B) dated June 15, 1990 extended the benefit under the said Scheme to those teachers and non- Teaching staff, both primary and secondary, who had received pension on June 15,1990. ( 4. ) FOR examining the validity of the aforesaid first ground, the provisions of Rule 23 of the said Rules are quoted below : "23. Family Pension - (1) Family pension is admissible to the member of the family of an employee who dies while in service after rendering at least one year's service. ( 4. ) FOR examining the validity of the aforesaid first ground, the provisions of Rule 23 of the said Rules are quoted below : "23. Family Pension - (1) Family pension is admissible to the member of the family of an employee who dies while in service after rendering at least one year's service. (2) Benefit shall also be admissible in case of death of an employee after retirement if at the time of death he was in receipt of compensation, invalid, retiring or superannuation Pension or Gratuity." In view of the provisions of Clause-(1) of Rule 23 of the said Rules, the benefits under the said Scheme were admissible to the petitioners. It is a matter of surprise for the Court that the respondent No. 2, being a responsible Government Officer, did not take the pain of going through the above provisions of the said Scheme and deprived the petitioners from enjoying the benefits of the aforesaid welfare legislation. ( 5. ) WITH regard the second ground, the respondent No. 2 relied on a departmental circular, bearing No. 163 Edn. (B) dated June 15, 1990 to reject the claim of the petitioners. By virtue of a judgment delivered in the matter of Indu Prabha Ghose v. State of West Bengal reported in (2010)1 Cal LJ (Cat) 114, this Court quashed and set aside the above departmental circular. The relevant portions of the above decision are quoted below: "10. Clause 3 of the Government order dated June 15, 1990 purported that the benefits of the said DCRB Scheme, 1981, stood extended to those employees of Non-Government Education Institutions and Organizations which were covered by the aforesaid Scheme and those benefits would be paid subject to due adjustment of pension and ex-gratia, in appropriate cases. 11. On a bare reading of Clause 3 of the Government order dated June 15,1990, a man of ordinary prudent cannot come to the above conclusion by stretch of imagination up to any extent that only those who had opted for "contributory Provident Fund and Pension" under the "Old Scheme" would get the benefit of that scheme. So, the above departmental circular/instruction dated April 12, 2006 cannot be sustained in law. 12. So, the above departmental circular/instruction dated April 12, 2006 cannot be sustained in law. 12. The above departmental circular/instruction is liable to be set aside on another ground that the policy of the Government declared by way of a Government order in the name of the Governor of a State cannot be subjected to supersession or sub-plantation by virtue of a mere departmental circular/instruction issued by an officer of a departments the State Government in the garb of clarification" ( 6. ) IN view of the above settled principles of law, the second ground for rejecting the prayer of the petitioners cannot be sustained in law. With the above observations and discussions, the impugned order dated December 18/19, 2008 passed by the respondent No. 2 is quashed and set aside. The respondent-authority is directed to extend the benefit of the said Scheme In favour of the petitioners within a period of six weeks from the date of communication of this order. It is, however, made clear that the benefits of the said Scheme shall be payable to the petitioner from the date on which the above Scheme comes into force. ( 7. ) THIS application is, thus, disposed of to the extent mentioned hereinabove. ( 8. ) LET there be a cost of Rs. 10,000/- only to be paid toward the learned Advocate's fee of the petitioners from the public exchequer at the first instance within the aforesaid period of six weeks from the date of communication of this order. The Secretary, School Education Department, Government of West Bengal, is directed to realise the aforesaid cost from the salary of the erring officer or by way of raising public demand in case his retirement from Government Service. ( 9. ) LET a photostat copy of this order be made available to the learned Advocate appearing for the petitioners for communication of this order to the Secretary, School Education Department, Government of West Bengal, the respondent No. 2, and the Comptroller and Auditor General, Government of India, New Delhi. ( 10. ) LET an urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of all requisite formalities.