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2011 DIGILAW 256 (CAL)

Banabihari Mondal v. STATE OF WEST BENGAL

2011-02-23

HARISH TANDAN

body2011
JUDGMENT 1. THE writ petitioners are the sons of a Primary School Teacher who died on 2.8.1977 while in service. THE widow of the said teacher applied for family pension in terms of West Bengal Recognized Non-Government Educational Institution Employees (Death-cum-Retirement-Benefit) Scheme, 1981 (hereinafter referred to as the OCRB Scheme, 1981). THE application is annexed to this writ application as Annexure P-1. It appears that the said application is in prescribed form and the same has been duly fried in by the mother of the writ petitioner. THE said application was entertained by the District Inspector of school and vide order dated 2.5.2006 forwarded the same to the Accountant General, respondent No. 3 to sanction the family scheme in favour of the mother of the writ petitioner. THE respondent No. 3 vide Memo dated 15th June, 2008 referred the matter back to the District Inspector of Schools for reconsideration in terms of Government Order dated 12.4.2006. Thereafter the said application was reconsidered by the District Inspector of School (PE) and was rejected by an order dated 14th August, 2007. THE said order was assailed by the mother of the writ petitioners in W.P. No. 2722 (W) of 2008 and this Court quashed and set aside the said order directing the Secretary, Department of Education to consider the matter regarding grant of the family pension in the light of an order passed on an earlier writ application being W.P. No. 3782 (W) of 2005 and also to take into consideration the memorandum dated 12th April, 2006 within a stipulated period. Pursuant to the said order, the Principal Secretary rejected the said application holding that the mother of the writ petitioners are not entitled to a family pension in terms of the memorandum dated 12th April, 2006. In the meantime, the mother of the writ petitioners died and the writ petitioners have impugned the said order in this writ application. 2. MR. Pabitra Kumar Basu, the learned Advocate for the respondent No. 4 submits that the mother of the writ petitioners have no right to claim family pension in terms of the Memorandum dated 12th April, 2006. In the meantime, the mother of the writ petitioners died and the writ petitioners have impugned the said order in this writ application. 2. MR. Pabitra Kumar Basu, the learned Advocate for the respondent No. 4 submits that the mother of the writ petitioners have no right to claim family pension in terms of the Memorandum dated 12th April, 2006. He further submits that the Government has now taken a decision and by memorandum dated 1st November, 2010 have allowed the benefit of the DCRB Scheme, 1981 to all employee whether retired or died-in-harness prior to 1.4.1981 provided the claimant has to make an application in the prescribed form. He further submits that there is no application filed by the mother of the writ petitioners, and as such, the case of the writ petitioners cannot be considered and is liable to foe dismissed. Mr. Sandip Kumar Bhattacharyya, learned Advocate appearing for the respondent No. 3 submits that the said respondent has already issued pensionary benefit under the old scheme. 3. MRS. Asalata Ghosh, learned Advocate appearing for the state respondent submits that in terms of the memorandum dated 12th April, 2006 the mother of the writ petitioners is not entitled to a family pension. The submission made by the respondent No. 4 -that the writ petitioners should make an application afresh in the light of the Memorandum dated 1st of November, 2010, is not tenable. The application taken out by the writ petitioners should be considered in the light of the relevant rules and provisions applicable at the time of an application and not subsequent thereto. The subsequent circular cannot have retrospective effect unless the same has been expressed to do so. 4. HAVING considered the respective submission made at the bar it is not in dispute that an application was taken out by the mother of the writ petitioners which would be evident from Annexure P-1 to the writ application. Thus, the submission of the learned Advocate appearing for the respondent No. 4 that no application has been taken out is not tenable. Furthermore, if there is no application, there was no question of any further Adjudication as the adjudication can only be made on the basis of an application taken out by individual. It appears that the authorities have rejected the said application by invoking the memorandum dated 12th April, 2006. Furthermore, if there is no application, there was no question of any further Adjudication as the adjudication can only be made on the basis of an application taken out by individual. It appears that the authorities have rejected the said application by invoking the memorandum dated 12th April, 2006. It may be noticed at this stage that the validity of the said memorandum came up for consideration before this Court in the case of Indu Prova Ghosh vs. State of West Bengal and Ors., reported in 2010(1) CLJ (Cal) 114 and this Court held that the policy of the Government declared by way of Government Order in the name of a Governor of a Slate cannot be subjected to supersession or sub-plantation by virtue of a mere departmental circular/instruction issued by an officer of the department of the State Government in the garb of clarification and quashed and set aside the said memorandum dated 12.4.2006. Thus, after the said memorandum being quashed and set aside. The impugned order which is passed by invoking the said circular is not sustainable and is liable to be quashed and set aside. 5. IN view of the discussions made hereinabove, the impugned order dated 29th September, 2008 is quashed and set aside. The respondent No. 5 is directed to consider and dispose of the said application of the writ petitioners for sanction of the family pension and shall forward the same to the respondent No. 2 for its due approval. The entire process should be completed within a period of six weeks from the date of communication of this order. 6. THE writ application is thus disposed of. There will be no order as to costs. Certified copy of this order, if applied for, be supplied to the parties on priority basis.