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Uttarakhand High Court · body

2012 DIGILAW 680 (UTT)

Debuli Devi v. State of U. P.

2012-11-05

K.J.SENGUPTA

body2012
Judgment : Kalyan Jyoti Sengupta, J. 1. The helpless widow of one Sher Singh has approached this Court with this writ petition praying for the following reliefs: “a) a writ, direction or order in the nature of mandamus directing the respondents to grant the interest on the amount of G.P.F. deposited by the husband of the petitioner, the difference of salary of the consolidated salary and salary in the prescribed pay scale with effect from 24-8-95 to 21-1-96 and family pension in accordance with law. b) any other suitable writ, order or direction that this Hon’ble Court may deem fit and proper in the circumstances of the case.” 2. After hearing the learned counsel for the petitioner, the writ petition is admitted. 3. Learned counsel for the petitioner does not press for the reliefs of G.P.F., difference of salary of the consolidated salary and salary in the prescribed pay scale w.e.f. 24th August, 1995 to 21st January, 1996 but he is praying for family pension in accordance with law. The point which comes up for consideration is, whether in this case the petitioner is entitled to get family pension or not. Short fact of the case is as follows: 4. The petitioner’s husband was appointed as Chaukidar on 16th February, 1974 in the Junior High School Birwabinola/Liti District Almora (now district Bageshwar. The said appointment was made by the Deputy Inspector of School. The appointment was not a regular appointment, as such, the husband of the petitioner, namely, Sher Singh was paid consolidated salary. There is no dispute with regard to the appointment. He continued with the aforesaid salary. Thereafter, in course of time on or about 9th February, 1996, he was fitted to a regular pay scale of Rs. 750-940. In the counter affidavit in paragraph 7, it has been admitted that husband of the petitioner was regularized on 24th August, 1995. After few months of regularization of service, he died in harness. In view of death in harness, the question of family pension does not arise. 5. In the counter affidavit, it has been stated that there is no rule granting family pension to the Class-IV employee of the school run by the Educational Board. Consequently, one year length of service does not qualify for getting any pensionary benefits. 6. In view of the aforesaid fact, the court initially is concerned whether there is any rule. 5. In the counter affidavit, it has been stated that there is no rule granting family pension to the Class-IV employee of the school run by the Educational Board. Consequently, one year length of service does not qualify for getting any pensionary benefits. 6. In view of the aforesaid fact, the court initially is concerned whether there is any rule. The order of Education Deptt. dated 18th April, 2001 has been produced before me. This order shows adoption of the order dated 21st September, 1979 which is applicable in case of regular government employee for grant of family pension in case of death of an employee after rendering service of one year. But there is no corresponding order or rule adopting the similar provision in case of Class IV employee of the Board. 7. Learned counsel for the petitioner submits that when the service was regularized, the length of service should be counted from the date of initial appointment and in any event, therefore, from 1974 till 1996 long 22 years is good enough to qualify to get full family pension incase of death. The learned Standing Counsel for the U.P. Govt., on the other hand, submits that regularization cannot be retrospective effect and the date of regularization should not be counted for the purpose of pensionary benefits. Moreover, she says that there is no such rule or order for grant of family pension of Class IV employee of the school run by the Education Board which is an autonomous body. 8. After having considered the contention of the learned counsel for the parties and having appreciated the fact, I am inclined to accept the argument of the learned counsel for the petitioner that regularization of service of the Sher Singh must be counted from the date of initial appointment. In my view, the word ‘regularization’ connotes a thing which was in existence not in order but it was accepted and ratified by taking subsequent decision. Once this is done, the initial irregularity is deemed to have been removed by taking proper measure. The dictionary meaning of the word ‘regularisation’ can be found from the Concise Oxford English Dictionary, 11th Edition. The word ‘regular’ is described as follows : “conforming to or governed by an accepted standard of procedure or convention.” 9. Once this is done, the initial irregularity is deemed to have been removed by taking proper measure. The dictionary meaning of the word ‘regularisation’ can be found from the Concise Oxford English Dictionary, 11th Edition. The word ‘regular’ is described as follows : “conforming to or governed by an accepted standard of procedure or convention.” 9. I am of the view, once he is regularized, the deceased employee is entitled to get all the terminal benefits taking into consideration of initial date of appointment. 10. But in this case, I do not find any specific legal provision governing to grant family pension in a case of this nature. I find in case of a teaching staff, such provision has been made by adopting the rules and order providing family pension in case of regular employees dated 21st September, 1979. This has been adopted on 18th April, 2001. In view of the situation, I think the Court cannot mandate to grant pension automatically unless there is some provision. Therefore, I direct Secretary of Basic Education to take a decision on this question. While doing so, he will see whether there is a corresponding provision of granting family pension in case of Class IV employee in regular government department. If it is so, they will consider such rule can be made applicable in case of non-teaching staff as it has been done in case of teaching staff. There should be parity and rationality in case of Class IV employee of Board also. I, therefore, direct the Secretary, Basic Education, U.P. to take decision after giving personal hearing to the petitioner within a period of eight weeks from the date of communication of this order. In the event, the petitioner’s case is rejected for any reason, the same shall be communicated in writing to the petitioner forthwith. 11. The writ petition is disposed of. 12. There will be no order as to costs.