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2014 DIGILAW 1089 (PAT)

Hemlata Devi v. State of Bihar

2014-11-03

R.M.DOSHIT

body2014
JUDGMENT This Petition under Article 226 of the Constitution is filed by one Hemlata Devi, wife of late Dina Prasad Singh, a Government servant. 2. The petitioner claims that late Dina Prasad Singh served under the Government of Bihar in Public Health and Engineering Department from 1978 till he died in harness on 11th June 2008. The petitioner is, therefore, entitled to receive the amount of gratuity and monthly family pension from the State Government. 3. It is not in dispute that late Dina Prasad Singh joined the service in June 1978 as a Khalasi under the Assistant Engineer, Public Health Sitamarhi Sub-Division as a daily wage employee in Work Charged Establishment. On 27th January 1996, under order made by the Executive Engineer, Public Health Division, Khagaria, late Dina Prasad Singh and six other daily wage employees in the Work Charged Establishment were made regular in the Work Charged Establishment. Immediately, the said order was stayed on 19th March 1996 under the order of the Chief Engineer-cum-Special Secretary, Public Health and Engineering Department of the State Government. Thus, late Dina Prasad Singh continued to serve as a daily wage employee in the Work Charged Establishment till his service came to be regularised in the Work Charged Establishment in 2006 under the order dated 7th December 2006 made under the direction of the Chief Engineer, Public Health and Engineering Department. Since the regularization in service within eighteen months, the late Dina Prasad Singh died in June 2008. 4. Since his death the petitioner has been paid the amounts of Group Insurance, salary for unutilized leave and some ex-gratia payment. The son of the petitioner has also been offered compassionate employment in the State service. 5. It is now the claim of the petitioner that she be paid family pension and the amount of death-cum-retirement gratuity. Both the said claims have been denied by the State Government. 6. Learned advocate Mr. S. B. K. Manglam has appeared for the petitioner. He has relied upon Rule 186 of the Bihar Pension Rules. He has submitted that the moment a Government servant dies after his retirement or in harness, his family is entitled to family pension as indicated in Rule 186 of the Bihar Pension Rules. 7. Rule 186 of the Bihar Pension Rules provides for the manner in which the family pension should be paid to the family of the deceased. He has submitted that the moment a Government servant dies after his retirement or in harness, his family is entitled to family pension as indicated in Rule 186 of the Bihar Pension Rules. 7. Rule 186 of the Bihar Pension Rules provides for the manner in which the family pension should be paid to the family of the deceased. The said Rule 186, however, does not provide for a substantive right to family pension as a matter of course. 8. Mr. S. B. K. Manglam has at first challenged the validity of the order dated 19th March 1996 under which the earlier order dated 27th January 1996 was stayed. It may be noted that the right to regularization in service being a right in a personam, it is the deceased Dina Prasad Singh alone who could have challenged the validity of the order dated 19th March 1996. Evidently, the said order was never challenged at any point of time and continued to be in operation till the late Dina Prasad Singh was regularised in service on 7th December 2006. The petitioner has no locus standi to challenge the aforesaid order dated 19th March 1996. 9. It is evident that the entire service of the late Dina Prasad Singh from 1978 to December 2006 was a non-pensionable service as a daily wage employee. The only pensionable service rendered by late Dina Prasad Singh was from December 2006 to June 2008, that is for some 18 months. Obviously, the said late Dina Prasad Singh had not rendered qualifying pensionable service to earn pension. The petitioner is, therefore, not entitled to family pension. 10. The State Government has relied upon the Resolution dated 31st August 2005 issued pursuant to the policy decision of the Government of India. Under the said Resolution, the employees of the Government of Bihar employed on or after 1st September 2005 have been allowed the benefit of contributory provident fund. In other words, they are not entitled to the benefit of pension. The late Dina Prasad Singh having entered the regular service in December 2006 after 1st September 2005, he was not entitled to the benefit of pension; nor is his family entitled to family pension. 11. Mr. S. B. K. Manglam has particularly relied upon paragraph 3 of the Resolution. He has submitted that the daily wage employees are expressly excluded from the application of the said Resolution. 11. Mr. S. B. K. Manglam has particularly relied upon paragraph 3 of the Resolution. He has submitted that the daily wage employees are expressly excluded from the application of the said Resolution. The petitioner is, therefore, entitled to family pension. 12. I am afraid I am unable to agree with Mr. S. B. K. Manglam. True, paragraph 3 of the said Resolution provides for exclusion of certain class of employees from the application of the said Resolution. The said Resolution is not made applicable to the persons employed in the Government of Bihar on deputation from Public Sector Organisation or the daily wage employees or the employees in re-employment. The said paragraph does not mean that such excluded class of employees will be governed by the Pension Rules. For the purpose of application, all such employees who are appointed on or after 1st September 2005 are excluded from the benefit of pension and other benefits under the Pension Rules. Paragraph 6 of the said Resolution is specific and reads as under:- ^^6- ;kstuk izo`Ùk gksus dh frfFk 1-9-2005 ;k mlds ckn fu;qDr dfeZ;ksa ds ekeyksa esa orZeku esa ykxw lkekU; Hkfo"; fuf/k rFkk fcgkj isa’ku fu;ekoyh] 1950 ds izko/kku ykxw ugha gksaxs] vFkkZr~ lkekU; Hkfo"; fuf/k ;kstuk ds varxZr va’knku dh dVkSrh ugha dh tk;sxhA** It is evident that the claim for family pension made by the petitioner is totally untenable. Petition is dismissed.