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2014 DIGILAW 978 (PAT)

Mostt. Nilam Sharma v. State Of Bihar

2014-09-11

AJAY KUMAR TRIPATHI

body2014
CAV ORDER Petitioner is a widow of late Ravindra Sharma, who has filed the writ application seeking a direction upon the respondents to pay her family pension and other retiral dues since the husband died in harness on 20.3.2010. As the respondent authorities did not take any steps in this direction, she decided to approach the High Court. 2. The plea of the petitioner is that the Executive Engineer, Patna Division, Public Works Department, as it then was, issued an appointment letter in favour of the husband of the petitioner to work as a Vibrator Khalashi on a pay scale of Rs.155-190. He was earlier working as a Truck Driver. The letter making such an appointment is Annexure- 1, dated 19.12.1979. Husband of the petitioner joined the post. From time to time his pay scale was revised, which is certified by a look at Annexure 2 and Annexure- 3. Even a service book was opened. Then the last of the revision of the pay was authorized on 21.2.2009. But despite all these actions having been taken by the respondents during the life time of the husband of the petitioner, the respondents have taken a plea or stand in the counter affidavit that the husband of the petitioner was never regularized or was part of the regular establishment, therefore, none of the claims is entertainable. They, therefore, are of the opinion that such an employee or the legal heirs cannot derive any benefit. 3. The continued association of the husband of the petitioner right from the year 1979 till the death, in the year 2010 is not denied or is not a matter of dispute. It has been a 30 year long association and uninterrupted service under the respondent State. If there was omission on the part of the respondent authorities to regularize his service, the omission or fault lay at the doorsteps of the respondents. Obviously, the need for continued engagement of the husband of the petitioner for three decades is a clear proof that even though the husband of the petitioner was part of the work charge establishment, he had acquired a right for regularization, which was more of a formality than lack of eligibility. Petitioner cannot suffer for such serious omission and exploitation of her husband, that too at the hands of the State. 4. Petitioner cannot suffer for such serious omission and exploitation of her husband, that too at the hands of the State. 4. Learned counsel representing the State harps on the fact that a work charge employee has no legal status. A recent gazette notification issued on 17.10.2013 also indicates that even if a right for regularization is created by virtue of the above notification that benefit can only accrue to such person, who continued to be in employment on the date of issuance of the notification. Since the death of the husband of the petitioner happened in March 2010, obviously he cannot be regularized. 5. Dispute of such kind have been going on before the High Court and some of it has even traveled to the Hon’ble Apex Court which would be evident even from the gazette notification of 2013 because it refers to a direction issued by the Apex Court based on which the cut off date have been re-fixed or extended. 6. The Court would like to draw analogy from a recent decision rendered in the case of Most. Baby Devi v. State of Bihar, reported in 2012 (3) PLJR 910 . Paragraphs 14 and 15 are of significance, which are reproduced herein below: “14. Learned counsel for the petitioners in rejoinder submitted that original writ petitioner in CWJC no.4517 of 2007 moved this Court in C.W.J.C. No.6217 of 2003 for compliance of the Government circular dated 22.10.1984 and resolution dated 23.10.1987, 20.9.1990 issued for regularization of the Work Charge Employees and this Court under orders dated 15.3.2004, Annexure-8 (in CWJC no.4517 of 2007) directed the State- respondents to consider his case for regularization as per the cut-off date for entry in the Work Charge Establishment fixed under Resolution No.6394 dated 23.10.1987 but the Commissioner-cum-Secretary of the Department ignoring the mandate of circular dated 22.10.1984 and resolution dated 23.10.1987, 20.9.1990 passed erroneous order dated 29.3.2006, which was assailed by the original writ petitioner of C.W.J.C. No.4517 of 2007. During the pendency of C.W.J.C. No.4517 of 2007, on account of ill-luck the original writ petitioner left for heavenly abode on 2.8.2008, as such, even though the right of the original writ petitioner to seek regularization may not be surviving but the widow petitioner no.1 is entitled to enforce her right for grant of family pension. During the pendency of C.W.J.C. No.4517 of 2007, on account of ill-luck the original writ petitioner left for heavenly abode on 2.8.2008, as such, even though the right of the original writ petitioner to seek regularization may not be surviving but the widow petitioner no.1 is entitled to enforce her right for grant of family pension. In this connection, learned counsel also relied on the judgment of the another Single Judge in the case of Shambhu Sharan Singh vs. The State of Bihar & ors., reported in 1998 (3) PLJR 908 . In the case relied upon the deceased employee was appointed by the competent authority as Choukidar in the Work Charge Establishment. While serving in the Work Charge Establishment for about six years he died on 6.1.80. Relying on the circular of the Government dated 22.10.1984 that Work Charge Employees completing five years of continuous satisfactory service is entitled to be regularized retiral benefits of the deceased Work Charge Employee was directed to be paid to the heirs of the deceased employee who died while serving in the Work Charge Establishment for more than six years. 15. In view of submission of the counsel for the State noted in paragraph 13 reliance placed by the counsel for the petitioners over the judgment of Division Bench in the case of Sangam Lal Yadav (supra) is misplaced, however, considering the submission noted in paragraphs 9, 11, 12, 14 and the contents of circular dated 22.10.1984 and resolution dated 23.10.1987, 20.9.1990, I set aside the order dated 29.3.2006, Annexure- 9 in C.W.J.C. No.4517 of 2007 and direct that the husband of the substituted petitioner no.1 of C.W.J.C. No.4517 of 2007 and petitioner of C.W.J.C. No.4600 of 2007 be regularized on the post of Watchman- cum- Peon and Roller Khalasi respectively with effect from the date they completed five years in Work Charge Establishment and petitioner no.1 of CWJC no.4517 of 2007 be paid family pension with effect from the date of death of her husband i.e. 2.8.2008, as early as possible, in any case within two months of the date of receipt of a copy of this order before the Secretary of the department. Within the same time respondent State should also extend the cut-off date fixed for regularization of the Work Charge Employee from 21.10.1984 to 11.1.1990 as was done in the case of Muster Roll Workers from 1.8.1985 to 11.1.1990 under resolution no.489 dated 10.5.2005 of the Government in appreciation of the fact that Work Charge Employees are superior in status to the Muster Roll Workers who are paid wages for the days on which they are actually engaged whereas the Work Charge Employees are paid salary as per the scale admissible for the post on which they are serving and are also allowed the benefit of pay revision and other service conditions admissible for regular employees.” 7. If this is what a learned Single Judge has opined about the status of a work charge employee and his right of regularization, the present case is surely a better case because the initial engagement of the petitioner’s husband as a Vibrator Khalashi is on 19.12.1979. The requirement of five years, initially fixing 21.10.1984 has been extended from time to time. If 30 years of long association and uninterrupted service rendered by the husband of the petitioner is not enough for regularization then there cannot be a better case or example of discrimination, exploitation and a blot on the face of the State, which claims itself to be a welfare State. 8. The 2013 notification does not bar the claim of the present petitioner because that is not the only notification, which has been issued by the State laying down parameters for regularization. Details of such notifications have been already discussed in the case Most. Baby Devi (supra). Therefore, a case in favour of the petitioner is surely made out for a direction that the husband of the petitioner would be deemed to be a part of the regular establishment till he died and a right in favour of the petitioner to demand and beget family pension in such circumstance is surely made out. 9. The writ application is allowed with a direction upon the respondents to ensure that the claim of the petitioner for family pension is worked out, sanctioned and authorized within a period of three months from the date of production/ communication of a copy of this order.