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2011 DIGILAW 120 (CAL)

Hasyabala Ban Ik v. STATE OF WEST BENGAL

2011-01-25

HARISH TANDAN

body2011
JUDGMENT 1. THE Judgment of the Court was as follows : The aforesaid two writ applications were ordered to be taken, up analogously as the point involved in these writ applications are common. 2. THE husband of the writ petitioner was appointed as a teacher in Netaji Siksha Mandir R.P. School, Badamtola Palta, Dt. - North 24 Parganas. Subsequent to the appointment he was promoted to the post of "A" category head teacher and thereafter competed the refresher course of basic training. The service of the deceased teacher was subsequently approved as head teacher in category "A" w.e.f. 20th December 1958. The said deceased teacher all along received all the payment as "A" category teacher till he died on 10th September 1971. THE writ petitioner made an application on 6th October 1971 for extending the family pension. In the mean time a scheme was framed by the State of West Bengal namely West Bengal Recognized Non-Government Educational Institution Employees (Death-cum-Retirement-Behefit) Scheme, 1981 (hereinafter referred as DCRB Scheme 1981) which came into effect on and from 1st April 1981. THE object and purpose of the said scheme was to extend the pension/family pension to those employees who served under the recognized non-government aided educational institutions and have retired or died in harness. THE benefits were extended to both the teaching and non-teaching employees governed under the said Scheme subject to the adjustment of the pension and ex gratia increases as were drawn by the said employee. Thereafter, the State Government issued a Circular under Memo No. 123-SE(B) dated April 12, 2006 whereby and wherein the benefit of the pension/family pension was restricted to those employees who have opted for Contributory Provident Fund and pension under the Old Scheme. Subsequently, the District Inspector of School (PE), North 24 Parganas by the impugned memo denied the benefit under the said DCRB Scheme, 1981 on the ground that the husband of the writ petitioner did not complete the 20 years' period of service. The writ petitioner has impugned the said decision dated 27th November, 2006 in the instant writ application. 3. THE said writ application was dismissed for default on September 11, 2007 and an application for restoration of the instant writ application was subsequently filed. The writ petitioner has impugned the said decision dated 27th November, 2006 in the instant writ application. 3. THE said writ application was dismissed for default on September 11, 2007 and an application for restoration of the instant writ application was subsequently filed. While the said application for restoration was pending the writ petitioner moved another writ application being W.P No. 920 (W) of 2009 ventilating the same grievance as have been made in the instant writ application. However, by an Order dated 30th July, 2010 this writ application was directed to be heard along with the other writ application being WP No. 920(W) of 2009. 4. MR. Kanai Lal Mondal, learned Advocate appearing for the petitioner submits that the respondent authorities have committed illegality in rejecting the application of the writ petitioner solely on the ground that the teacher who died in harness did not render 20 years in approved qualifying service. He further submits that by a subsequent Government Order under Memo No. 539-SE (PandB)/SL-SS-61/(10) dated 1 st November, 2010 the benefits have been extended to an employee who have not rendered 20 years in approved qualifying service and thus there is no point in withholding and/or denying the said benefit to the writ petitioner. Mr. Prabitra Basu, learned Advocate appearing for the respondent in WP No. 17845(W) of 2007 and Mr. Subrata Mukherjee, learned Advocate appearing for the respondent in WP No. 920 (W) of 2009 submit that after the aforesaid Government Order having passed on November 1, 2010 the writ petitioner is entitled to the benefits under the DCRB Scheme 1981. 5. HAVING considered the respective submissions made at the bar, the point which emerges for consideration is whether the benefit under the said DCRB Scheme 1981 can be extended to the teacher died, while in service, prior to 1st April, 1981. 6. BEFORE dealing with the point as framed above, it would be expedient to mention that the said government circular dated April 12,2006 was challenged and this Court in case of Indu Prava Ghosh V. State of West Bengal and Ors. reported in (2010)1 Cal LJ 114 was pleased to set aside and quash the said Circular directing the authorities concerned to extend the benefit of the DCRB Scheme 1981 w.e.f. its coming into force. Some of the relevant portions of the said judgment are quoted below : "9. reported in (2010)1 Cal LJ 114 was pleased to set aside and quash the said Circular directing the authorities concerned to extend the benefit of the DCRB Scheme 1981 w.e.f. its coming into force. Some of the relevant portions of the said judgment are quoted below : "9. But the benefit remained elusive, a far cry for the old widow in spite of so much laws. An officer of education department of the State Government issued a departmental circular instruction under Memo. No. 126-SE(B)/1M-23/2006 dated April 12, 2006 for the purpose of picking out a baseless objection from a hat that only those who had opted for "Contributory Provident Fund and Pension" under the 'Old Scheme' would get the benefit of the said DCRB Scheme 1981. 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 Educational Institutions and Organizations which were covered by the aforesaid scheme and those benefits would be paid subject to due adjustment of pension and exgratia, 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 that benefit of that scheme. 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 department of the State Government in the garb of clarification. 13. Consequent upon the observations and discussions made hereinabove, the departmental circular/instruction issued under Memo No. 126-SE(B)/1M-23/2006 dated April 12, 2006 is quashed and set aside. The respondent authority is directed to extend the benefit of the said DCRB Scheme, 1981, to the petitioner within a period of six weeks from date. 13. Consequent upon the observations and discussions made hereinabove, the departmental circular/instruction issued under Memo No. 126-SE(B)/1M-23/2006 dated April 12, 2006 is quashed and set aside. The respondent authority is directed to extend the benefit of the said DCRB Scheme, 1981, to the petitioner within a period of six weeks from date. It is, however, made clear that the benefits of the said DCRB Scheme, 1981 shall be payable to the petitioner from the date on which the above scheme comes into force." After the said judgment was passed and having realized that several discrepancies have arisen to extend the benefit under the DCRB Scheme 1981 and also in terms of the several Orders passed in the various cases by this Court, by a Government Order under Memo No. 539-SE (PandB)/ SL-SS-61/(10) dated 1st November, 2010 the pensionary benefit under the DCRB Scheme 1981 was extended to such widows of those employees who retired or died in harness prior to 1.4.1981. 7. ALTHOUGH the subsequent circulars or government orders which were not in existence as on the date when the right accrued cannot be applied to defeat the right which accrued prior to its existence. But where a circular in form of a clarification by which the benefit of 1981 has been extended to the teachers died prior to the coming in to the force of the said DCRB Scheme 1981, the same cannot be said to be a circular taking away the vested right. 8. A point cropped up in case of Non-Govt. School Pensioners' Association and Anr. v. The State of West Bengal and Ors. reported in (1989)1 Cal LJ 116 that the benefit of the DCRB Scheme 1981 can be extended to a teacher who retired prior to coming into force of the said Scheme. The learned Judge while extending the benefit to such a teacher observed as follows; para 5,6,7. "5. The petitioner's case is that as result of denial of the retirement benefits this difference in the rate of pension between Government School Teachers and Non-government School Teachers who retired prior to 1st April, 1981, although the recommendation on retirement benefits of the Education Commission which stated, inter alia, that retirements benefits given to teachers in Government Service should also be extended to teachers working in Educational Institutions conducted by local authorities and private organizations. The Nongovernment Schools Teachers who retired on and after 1st April, 1981 have been given the retirement benefits as recommended by the pay commission to the inclusion of those who retired before 1st April 1981.6. This action of the respondent is under challenge in this application. The question which is now agitated before this Court is now fully concluded by the judgment of the Supreme Court in the case of D.S. Nakra v. Union of India reported in AIR 1983SC 130. The Supreme Court held that the pensioners formed one class and that there is no basis for making Classification between the pensioners who had retired before or after a particular date and that the persons who retired earlier were entitled to get the benefit of the Notification under which the pensioners have been revised at the enhanced rate. In the result this application is allowed. 7. The revised pensionary benefits must be extended to all persons how have retired before 1.4.1981 and in the matter of computation of pensionary benefits, all other benefits which have been given to the persons who have retired after 1.4.1981 should also be given to the persons who have retired before 1.4.1981 and their pensionary benefit should be computed and paid accordingly." It could be seen that the said DCRB Scheme 1981 extended the pensionary benefits to the employees who were in service on 1.4.1981. Such benefit was also extended by subsequent memo dated 15th June 1990 to an employee who retired prior to 1.4.1981. By a subsequent memo dated 2nd February 1991 such benefit was further extended to an employee who died on and after 1.4.1981. If the benefit is extended to an employee who died after 1.4.1981 there is no justification in not extending such benefit to an employee died prior to 1.4.1981. There cannot be two classes of pensioners. The ratio laid down in case of Non-Govt. School Pensioners' Association and Anr. (supra) squarely applies in the instant writ application. The action of the authority in denying such benefit to the writ petitioner is arbitrary and not sustainable. 9. THE aforesaid office memo is therefore quashed and set aside. THE authority concerned is directed to extend the benefit of the said DCRB Scheme 1981 to the petitioner within a period of 8 weeks from the date of communication of this order. 10. THE writ application is, thus, disposed of. 9. THE aforesaid office memo is therefore quashed and set aside. THE authority concerned is directed to extend the benefit of the said DCRB Scheme 1981 to the petitioner within a period of 8 weeks from the date of communication of this order. 10. THE writ application is, thus, disposed of. In view of the Order passed in WP 17845 (W) of 2007 the another writ petition filed by the writ petitioner being WP no. 920(W) of 2009 is rendered infractuous and no further adjudication is required to be made therein.