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Gujarat High Court · body

2017 DIGILAW 1413 (GUJ)

Pratibha C. Chaudhary v. State Of Gujarat

2017-08-14

K.M.THAKER

body2017
JUDGMENT : 1. Heard Ms. Pandya, learned advocate for the petitioner, Ms. D.A.Thaker, learned advocate, for Mr. Meena, learned advocate for the respondent No.4, and Mr. Jani, learned AGP for respondent – State 2. In present petition, the petitioner has prayed, inter alia, that: “8(A)quash and set aside the decision of the respondent authorities of not sanctioning family pension, gratuity and insurance amount to the petitioner, and further be pleased to declare and hold that the petitioner is entitled to receive family pension, gratuity and insurance amount, and (B) direct the respondent authorities to sanction and pay family pension to the petitioner, with effect from 11.3.2003, and (C) direct the respondent authorities to pay the amount of death gratuity to the petitioner, and (D) direct the respondent authorities to make payment of Rs. 4,00,000 (Rupees four lakhs only), of insurance protection to the petitioner, under the Group Insurance Scheme of the State Government, to which the husband of the petitioner was a member, and (E) direct the respondent authorities to pay interest to the petitioner for the delayed payment of above dues, at the rate which the Honourable Court may consider as just and proper in the facts and circumstances of the case, and” 3. At the outset, it is necessary and appropriate to clarify that so far as claim for unpaid provident fund and benefit of leave encashment is concerned, it is declared by learned advocate for the petitioner that the said terminal benefits have been paid to the petitioner and that therefore, any dispute in respect of provident fund and leave encashment does not survive. It is also clarified by learned advocate for the petitioner that essentially the claim for which the petition survives and is pressed in service is claim for family pension, gratuity and group insurance. 4. At this stage, it is also necessary to record that learned advocate for the petitioner has clarified that the petitioner who is widow of deceased employee who was in service with respondent No.4 has not entered into remarriage after death of her husband, however, she lives with her father (who is retired government employee) and that she has one child from the marriage with the deceased employee. 5. So far as factual background is concerned, the petitioner has averred and stated that: “3.1 The petitioner respectfully states that, the petitioner is the widow of Dr. 5. So far as factual background is concerned, the petitioner has averred and stated that: “3.1 The petitioner respectfully states that, the petitioner is the widow of Dr. Chandra Shekhar Prakash Chaudhari, who was in the service of the Health Department of the Government of Gujarat as Medical Officer Class-II, for the period from 1.8.1996 to 10.3.2003. It is respectfully stated that the husband of the petitioner was possessing the educational qualification of M.B.B.S. It is respectfully stated that all throughout his service, the husband of the petitioner had remained at the Primary Health Centers under the administrative control of Bhavnagar District Panchayat. The petitioner further respectfully states that the husband of the petitioner died on 10.3.2003 in an accident. It is further respectfully stated that the date of birth of the husband of the petitioner was 1.1.1967. The petitioner respectfully states that the initial appointment of the husband of the petitioner was in the pay scale of Rs.2,200-4000, however under the Gujarat Civil Services (Revision of Pay) Rules, 1998, the said pay scale was revised to Rs. 8,000-275- 13,500. w.e.f. 1.1.1996, and thus, he was in the pay scale of Rs.8,000-275-13,500 from his initial date of appointment i.e. 1.8.1996. It is respectfully stated that considering annual increment of Rs. 275, at the time of death i.e. on 10.3.2003, his basic pay was Rs. 9,650. The petitioner respectfully states that, the service of the husband of the petitioner from 1.8.1996 to 10.3.2003 has been authorised by the Government in consultation with the Gujarat Public Service Commission vide order dated 14.5.2004. A copy of the said order dated 14.5.2004 is annexed herewith and marked as Annexure-A to this petition. It is further respectfully stated that consequential order passed by the Commissioner of Health dated 31.5.2004 is annexed her with and marked as Annexure-B to this petition. It is further respectfully stated that at the time of death of the husband of the petitioner, no dues were outstanding from him nor any departmental inquiry was pending against him. 3.2. The petitioner respectfully states that the date of birth of the petitioner is 5.12.1972. It is respectfully stated that the petitioner possesses the educational qualification of MA. (Sociology), from Patna University. It is respectfully stated that the petitioner was first class first in the year 1996 in the said examination. The petitioner respectfully states that, the petitioner was married to Dr. It is respectfully stated that the petitioner possesses the educational qualification of MA. (Sociology), from Patna University. It is respectfully stated that the petitioner was first class first in the year 1996 in the said examination. The petitioner respectfully states that, the petitioner was married to Dr. Chandra Shekhar Prakash Chaudhari, in the year 1997. It is further respectfully stated that the date of birth of the son of the petitioner is 9.7.1998. 3.3. The petitioner respectfully states that, after the death of the husband of the petitioner, the petitioner stayed with in-laws for few months but thereafter a situation was created wherein, it was not possible for the petitioner to continue to stay there and under these circumstances, the petitioner stays with her father, who is a retired Government employee. It is further respectfully stated that at present, the age of the father of the petitioner is 70 years. It is further respectfully stated that the mother of the petitioner has died before about 12 years.” 6. The relevant facts are not in dispute. The fact that, (a) petitioner's husband was employed as Medical Officer Class-II with respondent No.4 is not in dispute; (b) the husband of the petitioner served with respondent No.4 as Medical Officer Class-II from 1.8.1996 to 10.3.2003 i.e. for about 7 years is also not in dispute. 6.1. It is also not in dispute that during entire tenure of his service, the petitioner's husband was engaged and his appointment was considered service on ad hoc basis. 6.2. It is also not in dispute that from 1997 until the date of his death, the amount towards group insurance (now group insurance scheme introduced by the government w.e.f. April 1982) were regularly deducted from deceased employee's salary. It is also not in dispute that the said group insurance scheme, 1981 (which came into force from 1.4.1982) was applicable to Panchayat and employees of the Panchayat. 6.3 After sad demise of her husband, the petitioner lodged claim for family pension, gratuity, insurance, leave encashment, provident fund, etc. which were not paid by the respondents. 6.4 It is also not in dispute that by order dated 14.5.2004, the competent authority sanctioned / approved ad hoc appointment of the deceased employee and his service is treated as continuous service from 1.8.1997 to 10.3.2003. 6.5. which were not paid by the respondents. 6.4 It is also not in dispute that by order dated 14.5.2004, the competent authority sanctioned / approved ad hoc appointment of the deceased employee and his service is treated as continuous service from 1.8.1997 to 10.3.2003. 6.5. It is also not in dispute that the petitioner's husband died in road accident while in service with the respondent No.2. 6.6. It is also not in dispute that when the petitioner lodged the claim for family pension, gratuity and insurance, the respondents rejected her claim on the ground that since the deceased employee was engaged on ad hoc basis, he was not eligible for group insurance scheme or family pension or gratuity. 6.7. In this background, the petitioner has taken out present petition for above mentioned claims. 7. The respondent Nos.1 to 3 have opposed the petition by filing common affidavit dated 17.7.2006. The said respondent Nos.1 to 3 have averred and stated that: “3. With regard to sub para (1) of para 3 of the petition, it is submitted that the services of the husband of the petitioner were not authorised in consultation with Gujarat Public Service Commission (GPSC) as contended by the petitioner. But the husband of the petitioner was appointed on ad hoc basis for one year from 1.8.1996 but was continued in service till he died on 10.3.2003. Thus the period of ad hoc appointment from 1.8.1997 to 10.3.2003 was extended as ad hoc service under order dated 14.5.2004 (Annexure-A to the petition). 4. With regard to sub para (2) and (3) of the said para 3, I offer no comments. 5. With regard to sub para (1), (2) and (3) of para 4 of the petition, I say and submit that as stated earlier, the services rendered by the husband of the petitioner were ad hoc and were therefore, not pensionable. Thus no pensionery benefit was available to the petitioner. 6. As regards sub para(4) of para 4, it is submitted that the doctors whose cases are referred to by the petitioner in this paragraph, were initially appointed on ad hoc basis and later on they were selected by GPSC and therefore, their ad hoc services were joined with their regular services as approved by GPSC for the purpose of pension. As regards sub para(4) of para 4, it is submitted that the doctors whose cases are referred to by the petitioner in this paragraph, were initially appointed on ad hoc basis and later on they were selected by GPSC and therefore, their ad hoc services were joined with their regular services as approved by GPSC for the purpose of pension. But, in the instant case, the deceased husband of the petitioner was never selected by GPSC and therefore, his ad hoc services cannot be considered as pension-able service. 7. As regards sub para (5) of the said para 4, it is submitted that since the services rendered by the husband of the petitioner were ad hoc and non-pension-able and therefore no gratuity was payable to her. 8. As regards sub para (1) of para 5 of the petition, it is submitted that since the services of the husband of the petitioner were ad hoc, she was entitled only to the amount-deposited in Saving Fund and not for the insurance amount. 9. As regards sub para (2) of the said para 5, it is submitted that since the services of the husband of the petitioner were ad hoc and non-pension-able, no pensionery benefit is payable to her. 10. As regards sub para (3) of the said para 5, it is submitted that" since the services of the husband of the petitioner were non-pension-able, the question of the payment of the amount of pensionery benefits does not arise.” 7.1. The respondent No.4 Panchayat has also opposed the petition with their affidavit dated 10.8.2006 wherein it is averred and stated that: “4. I state that the deceased was appointed on an ad hoc basis, and the deceased had joined the duty on the 1/8/96 in primary health centre at Bhavnagar. I state that the term of deceased was till 31/7/97. However it was again extended from 1/8/97 to 10/3/2003 (i.e. till the date on which he expired). I state that as per the resolution No.1081-31-J dated 10/11/1981 (paragraph 3) it is clearly stated that ad hoc/temporary employee is/are not entitled to the benefits as claimed in the petition by the wife of the deceased. Annexed to this reply and marked as Annexure “A” is the copy of the resolution passed by the government of Gujarat dated 10/11/1981. 5. Annexed to this reply and marked as Annexure “A” is the copy of the resolution passed by the government of Gujarat dated 10/11/1981. 5. I state that since the deceased was on ad hoc basis and no amount of insurance premium was required to be deducted from his income. I state that from 1/8/96 till 31/3/97 no amount of premium for insurance was deducted from the income of the deceased. However from 1/4/97 to 31/3/2003 the amount was deducted from the income of the deceased due to accounting error. I state that, by letter dated 29/3/2004 the chief personal officer (medical) had informed the district panchayat that the amount deducted from the income of the deceased was incorrect and the same to be refunded back to the heirs of the deceased. The letter sent to the district panchayat by the chief personal officer dated 29/3/2004 is annexed to this application and marked as Annexure "B". I further state that as per the Gujarat civil service (pension) rules2002 rule No. 25 the ad hoc services cannot be counted as qualifying service and hence pension/Provident fund and other facilities cannot be granted to the deceased. 6. I state that, in order to be eligible for the insurance scheme, as per the rules form No.1 and 2 are required to be filled by the employee and signature of the departmental head is required to be taken. However in the case of deceased no such signature of the departmental head has been taken. I further state that the petitioners are trying to take undue advantage of the mistake committed by the respondent authorities. I state that the said mistake has been rectified and the respondent authority has stopped the deducting insurance premium for many of the ad hoc employees. I state that as held by this honourable High Court and the honourable supreme court of India in catena of decisions, the rule of promissory estopple cannot be held against the state authorities when the act has been constituted under the bona fide mistake.” 8. Learned advocate for the petitioner submitted that her husband served with the respondent No.4 has Medical Officer Class II in health department. She submitted that actually, the deceased employee was appointed by Government in health department and his posting was at Public Health Centre. Learned advocate for the petitioner submitted that her husband served with the respondent No.4 has Medical Officer Class II in health department. She submitted that actually, the deceased employee was appointed by Government in health department and his posting was at Public Health Centre. She submitted that the deceased employee served with the respondent Nos.1 to 3 for 7 years and during tenure of his service, deduction of appropriate amount in accordance with the rules of group insurance scheme were regularly deducted from his month salary and the said deduction continued till his death. She submitted that despite the fact that the amount was regularly deducted from her husband's salary towards group insurance, the respondents refused to pay the amount payable in accordance with the scheme only on the ground that ad hoc employee were nt eligible to join the scheme and/or to be member under the scheme. She further submitted that on the said ground, i.e. that her husband was employed on ad hoc basis, the claim of family pension and gratuity are also denied. According to learned advocate for the petitioner, the decision of the respondents is illegal and arbitrary and contrary to provisions under the GCSR (Pension) Rules as well as the Scheme. 8.1. So as to support her submission, learned advocate for the petitioner relied on Rule 80 and 81(1)(a) of GCSR (Pension) Rules. 9. Mr. Jani, learned AGP and Ms. Thaker, learned advocate for respondent No.4 made common submissions. Essentially, both of them reiterated the contentions and submissions from the affidavit. The only ground on which the petitioner's case is opposed is that the petitioner's husband served as ad hoc employee and that ad hoc employee cannot be considered eligible for pension or for gratuity under GCSR (Pension) Rules or for insurance amount under the group insurance scheme and that therefore, the petitioner's demand for the said claim is not justified and cannot be accepted by the respondents. 10. I have considered rival submissions and material available on record. 11. As mentioned above, relevant facts are not in dispute. 12. For sake of convenience, it would be appropriate to first deal with the petitioner's claim for family pension. 12.1. It is given out by the respondents and it is not disputed by the petitioner that the deceased employee could not be regularized in service because he did not clear GPSC Examination. 12.2. 12. For sake of convenience, it would be appropriate to first deal with the petitioner's claim for family pension. 12.1. It is given out by the respondents and it is not disputed by the petitioner that the deceased employee could not be regularized in service because he did not clear GPSC Examination. 12.2. Be that as it may, fact remains that during entire tenure of his service, the petitioner's husband continued as ad hoc employee and that total tenure of his service was 7 years i.e. less than minimum length of service necessary for being eligible for pension/family pension and that therefore, the decision of the respondents of denying the claim for family pension cannot be faulted. 13. So far as petitioner's grievance with regard to nonpayment of pension and gratuity is concerned, more important aspect is that the learned AGP relied on the decision dated 7.9.2010 in Letters Patent Appeal No.1666 of 2010 wherein Hon'ble Division Bench considered the issue related to claim for pension and gratuity by an employee who was engaged on ad hoc basis and worked with the respondent State on ad hoc basis. In the said case, learned Single Judge had rejected the petition claiming benefit of pension and gratuity. Learned Single Judge rejected the petition on the ground that said benefits are not admissible to the employee who were engage and who worked on ad hoc basis. Against the said decision by learned Single Judge, concerned employee had preferred Letters Patent Appeal No.1666 of 2010. In the said decision, Hon'ble Division Bench summarized factual background in paragraph No.2 of the said decision, which reads thus: “Brief facts of the case are that the appellant was appointed as Medical Officer, Class II, by order dated 18.10.1976 on ad hoc basis. He joined the services and continued in the service till he reached the age of superannuation on 31.5.2007. He was transferred from Vastadi to Mangrol Government Hospital by order dated 1.4.1977. His services were terminated by order dated 27.4.1977 on the ground that the ad hoc period was over. Again the appellant came to be appointed on 18.5.1977 at Mangrol Government hospital on ad hoc basis. He was again terminated on the same ground. He was again appointed on 3.11.1977 at Mangrol. From then onwards he continued in the service on regular pay. He was permitted to cross Efficiency Bar. Again the appellant came to be appointed on 18.5.1977 at Mangrol Government hospital on ad hoc basis. He was again terminated on the same ground. He was again appointed on 3.11.1977 at Mangrol. From then onwards he continued in the service on regular pay. He was permitted to cross Efficiency Bar. The fact, however, remains that his appointment was on ad hoc basis. He was not appointed after following the requisite procedure of appointment. The terms in the appointment order indicate that the appointment will not entitle the appellant to substantive appointment. He should apply to the Gujarat Public Service Commission and take his chance along with other candidates as and when the posts are advertised by the Commission and if he fails to apply or fails to appear for the interview and if he is not selected by the Commission, his services would be liable to be terminated forthwith.” 13.1The relief, which was prayed for by the petitioner –appellant before learned Single Judge is summarized by Hon'ble Division Bench in paragraph No.4 of the decision, which reads thus: “The prayer is for quashing the action of the respondents in not considering the appellant as a permanent/regularized employee and then seeking a mandamus to release the retiral benefits, namely, pension, gratuity etc.” 13.2Having considered the decision by learned Single Judge in the petition, Hon'ble Division Bench observed and held that: “Learned Single Judge by the impugned judgment and order dismissed the petition on the ground that the petitioner was not selected by the Gujarat Public Service Commission. He was not a regularly appointed Government servant. Therefore, the pensionary benefits are not admissible to him irrespective of number of years' service put in by him. The petitioner cannot be treated as regularly appointed Government servant only on the basis of his length of service. Therefore, the view taken by the authorities is just and proper. Aggrieved thereby, the present appeal is preferred. Learned advocate Mr. Majmudar submits that the petitioner appeared in the examination once but he failed and when the GPSC conducted the examination on the second occasion, the appellant was age barred. Therefore, looking to the length of service put in by the appellant, his services ought to have been treated as regular one. Learned AGP Ms. Manisha Lovkumar has opposed this appeal. Majmudar submits that the petitioner appeared in the examination once but he failed and when the GPSC conducted the examination on the second occasion, the appellant was age barred. Therefore, looking to the length of service put in by the appellant, his services ought to have been treated as regular one. Learned AGP Ms. Manisha Lovkumar has opposed this appeal. Having regard to the rival submissions, it is not in dispute that the appellant was not a regularly appointed employee. His appointment was purely ad hoc subject to his passing GPSC examination. By the petition, he has made the prayer for regularization of his services for the purpose of getting retrial benefits. He has approached this Court after his actual retirement. Irregularly appointed employee without following the requisite procedure will get no right irrespective of length of services. The appellant having failed to secure appointment after competing with others in the examination cannot claim that his ad hoc appointment to be treated as regular one particularly in the light of the terms of appointment narrated hereinabove. We do not find any merit in the appeal. Reliance was placed on Rule 25 which defines qualifying service and it was urged that since the appellant's employment is not listed in Clause 1 of the said Rules, he should be treated as a permanent employee. It is not possible to accept this contention for the reason that the list in Clause 1 is only illustrative and not exhaustive. Further, it deals with a situation where the inclusion in the term qualifying service is service on probation rendered on regular establishment in any capacity whether temporary or permanent interrupted or continuous but does not include ad hoc or irregular appointment. By no stretch of imagination can this interpretation given to this provision by Mr. Majmudar be accepted. The appeal must fail and stands dismissed.” 14. In present case also, the deceased employee worked for 7 years on ad hoc basis. He was appointed/employed on ad hoc basis and during tenure of his service, he worked as such i.e. on ad hoc basis. 14.1. Majmudar be accepted. The appeal must fail and stands dismissed.” 14. In present case also, the deceased employee worked for 7 years on ad hoc basis. He was appointed/employed on ad hoc basis and during tenure of his service, he worked as such i.e. on ad hoc basis. 14.1. It is not claimed by the petitioner that at any point of time deceased employee's service was regularized by the respondent and/or that he was take-up on regular establishment by the respondents and/or in any proceedings, Court passed order directing the respondents to regularize the service and to treat him on regular establishment. 14.2. In light of the fact that the petitioner's husband had not worked for minimum 10 years and that he had served only for 7 years before his death, the petitioner's husband, in light of the observation in said judgment, would not be eligible for pension or gratuity. Consequently, the petitioner would not be eligible for family pension/gratuity. 14.3. Under the circumstances, so far as petitioner's claim for pension and gratuity are concerned, this Court is bound by the decision of Hon'ble Division Bench in Letters Patent Appeal No.1666 of 2010. Under the circumstances, the said claim cannot be entertained and cannot be granted. 15. Now, so far as the petitioner's claim for amount available under group insurance is concerned, it is relevant to note that the petitioner's husband was considered member of group insurance scheme, inasmuch as during his service tenure, deduction towards insurance premium was regularly deducted from his salary and paid towards insurance scheme. 15.1. However, the respondents have denied the said claim/benefit to the petitioner on the ground that according to the terms and conditions of Group Insurance Scheme, 1981, ad hoc employees were not covered under the Scheme and that therefore, the petitioner's claim for the said benefit cannot be entertained. 15.2. The respondent Nos.1 to 3 have filed affidavit and asserted that: “3. With regard to sub para (1) of para 3 of the petition, it is submitted that the services of the husband of the petitioner were not authorised in consultation with Gujarat Public Service Commission (GPSC) as contended by the petitioner. But the husband of the petitioner was appointed on ad hoc basis for one year from 1.8.1996 but was continued in service till he died on 10.3.2003. But the husband of the petitioner was appointed on ad hoc basis for one year from 1.8.1996 but was continued in service till he died on 10.3.2003. Thus the period of ad hoc appointment from 1.8.1997 to 10.3.2003 was extended as ad hoc service under order dated 14.5.2004 (Annexure A to the petition). 6. As regards sub para(4) of para 4, it is submitted that the doctors whose cases are referred to by the petitioner in this paragraph, were initially appointed on ad hoc basis and later on they were selected by GPSC and therefore, their ad hoc services were joined with their regular services as approved by GPSC for the purpose of pension. But, in the instant case, the deceased husband of the petitioner was never selected by GPSC and therefore, his ad hoc services cannot be considered as pensionable service. 8. As regards sub para (1) of para 5 of the petition, it is submitted that since the services of the husband of the petitioner were ad hoc, she was entitled only to the amount deposited in Saving Fund and not for the insurance amount. 10. As regards sub para (3) of the said para 5, it is submitted that" since the services of the husband of the petitioner were non-pension-able, the question of the payment of the amount of pensionery benefits does not arise.” 15.3. From the said affidavit, it also comes out that the respondents are opposing the petitioner's claim for insurance amount only on the ground that her husband was appointed on ad hoc basis and he worked on ad hoc basis during entire tenure of his service. 15.4. The respondent No.4 has also filed affidavit. So far as petitioner's claim for insurance amount is concerned, the respondent No.4, in his affidavit, has averred and stated that: “4. I state that the deceased was appointed on an ad hoc basis, and the deceased had joined the duty on the 1/8/96 in primary health centre at Bhavnagar. I state that the term of deceased was till 31/7/97. However it was again extended from 1/8/97 to 10/3/2003 (i.e. till the date on which he expired). I state that as per the resolution No.1081-31-J dated 10/11/1981 (paragraph 3) it is clearly stated that ad hoc/temporary employee is/are not entitled to the benefits as claimed in the petition by the wife of the deceased. However it was again extended from 1/8/97 to 10/3/2003 (i.e. till the date on which he expired). I state that as per the resolution No.1081-31-J dated 10/11/1981 (paragraph 3) it is clearly stated that ad hoc/temporary employee is/are not entitled to the benefits as claimed in the petition by the wife of the deceased. Annexed to this reply and marked as Annexure “A” is the copy of the resolution passed by the government of Gujarat dated 10/11/1981. 5. I state that since the deceased was on ad hoc basis and no amount of insurance premium was required to be deducted from his income. I state that from 1/8/96 till 31/3/97 no amount of premium for insurance was deducted from the income of the deceased. However from 1/4/97 to 31/3/2003 the amount was deducted from the income of the deceased due to accounting error. I state that, by letter dated 29/3/2004 the chief personal officer (medical) had informed the district panchayat that the amount deducted from the income of the deceased was incorrect and the same to be refunded back to the heirs of the deceased. The letter sent to the district panchayat by the chief personal officer dated 29/3/2004 is annexed to this application and marked as Annexure "B". I further state that as per the Gujarat civil service (pension) rules2002 rule No. 25 the ad hoc services cannot be counted as qualifying service and hence pension/Provident fund and other facilities cannot be granted to the deceased. 6. I state that, in order to be eligible for the insurance scheme, as per the rules form No.1 and 2 are required to be filled by the employee and signature of the departmental head is required to be taken. However in the case of deceased no such signature of the departmental head has been taken. I further state that the petitioners are trying to take undue advantage of the mistake committed by the respondent authorities I state that the said mistake has been rectified and the respondent authority has stopped the deducting insurance premium from any of the ad hoc employees. I state that as held by this honourable High Court and the honourable supreme court of India in catena of decisions, the rule of promissory estopple cannot be held against the state authorities when the act has been constituted under the bona fide mistake.” 15.5. I state that as held by this honourable High Court and the honourable supreme court of India in catena of decisions, the rule of promissory estopple cannot be held against the state authorities when the act has been constituted under the bona fide mistake.” 15.5. From the reply affidavit by the respondent No.4, it comes out clearly that the assertion by the petitioner that during tenure of her husband's service, premium was regularly deducted is not denied. 16. Thus, the fact that right from 1997 until 10.3.2003 when the petitioner's husband died, amount towards insurance premium was regularly deducted from the salary of petitioner's husband. 16.1. The respondents have placed reliance on the provision under the Scheme which provide, inter alia, that the employees working on temporary and ad hoc basis will not be covered under the Scheme. 16.2. However, so far as petitioner is concerned, her husband was taken up as member of the Scheme and insurance premium was regularly deducted from his salary until he died on10.3.2003 and the said fact stares in the face of respondents. 16.3. It is pertinent that at any point of time, the respondent authorities did not discontinue the deduction towards insurance premium from the salary of the deceased employee. 16.4. Likewise at any point of time the deceased employee or the petitioner was not informed that the amount which was deducted onwards insurance premium was on account of mistake. 16.5. It was only after the petitioner raised the claim and demanded insurance amount that the respondent authorities came out with the contention that the amount towards insurance cannot be paid because her husband worked as ad hoc employee (for 7 years). 17. The fact that the petitioner's husband was qualified doctor and was engaged as Medical Officer and he worked as Medical Officer from August 1996 to 9.3.2003 i.e. until he died on 10.3.2003 is not in dispute. 17.1. The fact that the contribution towards insurance premium was deducted from his salary regularly from 1997 is also not in dispute. 17.2. As mentioned above, the fact that during entire tenure of service of petitioner's husband, the employee was never informed that he was not eligible for being member of/for being covered by the insurance scheme and/or that the amount deducted from his salary towards insurance premium was mistake. 17.3. 17.2. As mentioned above, the fact that during entire tenure of service of petitioner's husband, the employee was never informed that he was not eligible for being member of/for being covered by the insurance scheme and/or that the amount deducted from his salary towards insurance premium was mistake. 17.3. Not only this, but at any point of time, the respondents never discontinued deduction of the amount towards insurance premium from the salary of the petitioner's husband, until his sad demise. 18. In this view of the matter, after death of petitioner's husband and when the petitioner raised the claim for insurance amount, the respondents are not justified in refusing the claim for group insurance amount under the insurance scheme. 18.1. The petitioner, as widow of the deceased employee, has legitimate expectations in view of the facts of the case. 18.2. Further, in view of the fact that during entire tenure of service of the deceased employee, deduction towards insurance premium was not considered as mistake and was never discontinued, the respondents are estopped from raising said contention after death of the employee when the petitioner has come forward wit the claim. 18.3. The Group Insurance Scheme, 1981 is in nature of contract between the respondents and the employees. By their action and conduct viz. by deducting the amount towards insurance premium from the salary of petitioner's husband, the respondent authorities treated and considered the petitioner's husband as member of the Scheme. 19. The Government's impugned decision viz. refusal to pay group insurance amount to the petitioner deserves to be considered from following perspective viz. (i) the scheme is a contract/binding agreement; (ii) the scheme constitutes promise coupled with estoppel; and (iii) legitimate expectations; and (iv) delay/laches and acquiescence, and on the premise that (v) plea of mistake cannot be allowed after death of the person who was party to the contract. 19.1. The group insurance scheme is not a statutory scheme. The scheme is not framed under any statutory provision or obligation or in exercise of any statutory power. The scheme is framed by virtue of government resolution. The scheme is, thus, a binding agreement between the parties. Under the scheme, the employees agree for deduction of specified amount from their salary which would be credited towards premium for insurance and the government agrees to pay specified amount as “insurance amount” on occurrence of specified events. The scheme is framed by virtue of government resolution. The scheme is, thus, a binding agreement between the parties. Under the scheme, the employees agree for deduction of specified amount from their salary which would be credited towards premium for insurance and the government agrees to pay specified amount as “insurance amount” on occurrence of specified events. The amount towards insurance premium is deducted from salary of the employee who is admitted into the scheme (as member of the scheme). The moment the premium amount is deducted from employee's salary and it is credited in his name into the scheme, the employee would enter into the Scheme and would become member. The moment employee agrees and consents for deduction of premium amount from his salary and payment towards premium and there upon when the amount is deducted and deposited or credited towards premium amount in his name/account, a contract stands executed and comes into existence. Thus, such employee becomes member of the scheme and should be considered “member” of the scheme. 19.2. In present case, the facts and relevant material have established that the amount towards insurance premium was deducted from the salary of the petitioner's husband from 1997 and such deduction towards insurance premium continued until March 2003 i.e. until the death of petitioner's husband. 19.3. During the interregnum, the respondents never contended that the husband of the petitioner was not member of the scheme and/or that he was not eligible to be member of the scheme. 19.4. Likewise, during the said period, the respondent never contended that on account of mistake the husband of the petitioner was admitted as member of the scheme. 19.5. On such ground, the membership of petitioner's husband was never discontinued/terminated. 19.6. The petitioner's husband continued as member until his sad demise. The deduction towards premium amount from his salary also continued until his sad demise. 19.7. Thus, the said contract remained alive and in force until the death of petitioner's husband. 19.8. By virtue of and on account of deduction of insurance amount from salary of petitioner's husband and consequent payment of insurance premium which was credited to the account of petitioner's husband, the membership into the scheme continued until death of petitioner's husband. 19.9. 19.7. Thus, the said contract remained alive and in force until the death of petitioner's husband. 19.8. By virtue of and on account of deduction of insurance amount from salary of petitioner's husband and consequent payment of insurance premium which was credited to the account of petitioner's husband, the membership into the scheme continued until death of petitioner's husband. 19.9. Having admitted the petitioner's husband as member into the scheme and having regularly deducted insurance premium from hi salary and after having credited the said amount to his account into the scheme, the government cannot turn around and claim that the petitioner's husband was not eligible for being member of the scheme. 19.10. A binding agreement came into existence between the petitioner's husband and government when the employee gave his consent for deduction of premium amount from his salary and thereupon, the government deducted insurance premium from his salary and credited the amount to his account in the scheme. As mentioned above, the said binding agreement remained alive and in force until the death of petitioner's husband. 19.11. Thus, the obligation required to be discharged by the member of the scheme was continuously discharged by petitioner's husband from 997 to March 2003 and the said performance or discharge of obligation by the employee was accepted by the government. Actually, the crucial and rather interesting part of the scheme is that it was the government who deducted the premium amount from salary of petitioner's husband. 19.12. It is not the case even of the State Government that the petitioner's husband had misrepresented any facts or by fraud or that he acquired membership of the scheme by misrepresentation or that though he was not eligible to pay insurance premium, he surreptitiously or on misrepresentation or by fraud, continued to pay premium with ill-intention of creating right in his favour. 19.13. When there is no allegation of misrepresentation or fraud by the employee, the government cannot be allowed to wriggle out of its part of obligation under the contract/agreement. 20. The petitioner's claim and membership of her husband in the insurance scheme can also be examined from the perspective of promise and estoppel. 20.1. 19.13. When there is no allegation of misrepresentation or fraud by the employee, the government cannot be allowed to wriggle out of its part of obligation under the contract/agreement. 20. The petitioner's claim and membership of her husband in the insurance scheme can also be examined from the perspective of promise and estoppel. 20.1. By introducing the insurance scheme and by admitting the petitioner's husband as member into the scheme (by deducting insurance premium from his salary and crediting it to his account under the scheme), the State Government made a promise to pay specified amount on occurrence of specified event. 20.2. Based on promise, all employees including the petitioner's husband changed their position and allowed deduction (of insurance premium amount) from their salary. 20.3. The government, on the other hand, having made the said promise, deducted, on strength of said promise, premium amount from the salary of employees and accepted premium amount from the employees including the petitioner's husband. The government continued to credit such amount in the scheme. 20.4. Upon deducting the amounts from the salaries of the employees including the petitioner's husband and by crediting the amounts in the respective accounts of the employees, the government bound itself to pay specified amount on occurrence of the events specified in the scheme. 20.5. In this view of the matter, the government is estopped from claiming that the particular employee could not have been admitted as member of the scheme (or that he was admitted as a member in the scheme by mistake). 20.6. When the membership is continued over a period of 6 years, more particularly until death of employees, the doctrine of promise and estoppel will stare in face of the government. 20.7. The Court cannot permit the government to breach its promise. 20.8. Further, as mentioned earlier, the scheme is not a statutory scheme. It is neither framed in discharge of any statutory obligation nor it is framed by framing rules under any statute. Therefore the principle or the concept that the doctrine of promise and estoppel cannot be raised against statutory action will not be attracted and applicable in present case. 20.9. The government is, thus, estopped from claiming that the petitioner's husband could not have been member and therefore, he is not entitled for insurance amount. 20.10. Therefore the principle or the concept that the doctrine of promise and estoppel cannot be raised against statutory action will not be attracted and applicable in present case. 20.9. The government is, thus, estopped from claiming that the petitioner's husband could not have been member and therefore, he is not entitled for insurance amount. 20.10. Such contention or refusal by the respondent State amounts to breach of promise and breach of contract and such refusal is hit by doctrine of promise and estoppel. 21. Besides this, in light of the fact that the government continued to accept the premium amount or continued to deduct amount from salary of petitioner’s husband and continued to credit the said amount towards insurance premium and in view of the fact that the system an the arrangement continued until death of petitioner's husband, the heirs / legal representatives of the concerned/deceased employee (petitioner in present case) would have legitimate expectations for insurance amount. 21.1. The said legitimate expectation is based on the promise made by the government under the scheme and is also based o the fact that the membership of the employee (in present case the petitioner's husband) was accepted by the respondent State and the said membership continued until employee's death. 21.2. In present case, it is pertinent that at any point of time, until death of the concerned employee (petitioner's husband) any objection against his membership was not raised. Even the plea of so-called mistake was also never raised by the respondent. The premium amount was regularly deducted/paid. 21.3. Therefore, the employee/his family/on the premise of legitimate expectation, the claim raised by the petitioner in her capacity as legal representative of the deceased employee, cannot be denied. 22. The impugned decision of the respondent and the refusal to pay insurance amount is is also hit by delay/laches and acquiescence. 22.1. It is pertinent that in present case, the plea on the ground of mistake was never raised by the respondent and the husband of the petitioner continued to be member of the scheme. 22.2. From 1997 to 2003, the respondent never raised such plea. 22.3. After death of petitioner's husband in 2003, the petitioner raised claim for insurance amount. 22.1. It is pertinent that in present case, the plea on the ground of mistake was never raised by the respondent and the husband of the petitioner continued to be member of the scheme. 22.2. From 1997 to 2003, the respondent never raised such plea. 22.3. After death of petitioner's husband in 2003, the petitioner raised claim for insurance amount. Since the petitioner did not receive any amount after several requests, she, ultimately, addressed a letter dated 18.9.2003 wherein she emphasized that the amount towards monthly premium was regularly deducted from her husband's salary until his sad demise. She also requested that the Chief District Medical Officer had also recommended the payment and since the payment was not received, he had also sought for details. At that stage also, the respondent did not inform the petitioner that her husband is not considered eligible for membership and that therefore, the insurance amount in accordance with the policy/ scheme cannot be paid. Instead, exchange of correspondence between the office where petitioner's husband served, concerned department and Pay and Accounts Department ensured for long time. The office exchanged various letters including letters dated 23.9.2003 by the Commissioner, Health & Medical Services, Chief Personnel Officer, Health & Medical Services, District Health Officer, Administrative Officer, District Panchayat, Pay & Accounts Department, etc. on 23.9.2003, 3.10.2003 and 29.3.2004. Until 29.3.2004, the said excuse or contention was never raised by the respondents and it was for the first time that in the communication date 29.3.2004, the Chief Personnel Officer, Health & Medical Services and Education Department mentioned that the scheme does not cover employees engaged on ad hoc basis. On the said ground, the Chief Personnel Officer instructed District Development Officer that the payment should not be released. Until then, such contention was never raised by the respondents. At that stage, the respondent State raised the plea on the ground of mistake. 22.4. Having regard to the fact that the petitioner's husband was admitted to the scheme as member and his membership was accepted and continued by the respondents for almost 6 years, the subsequent objection on the ground of mistake is also hit by vice of laches/delay and/or acquiescence. 22.5. Even if the respondent's plea on ground of mistake were to be considered then also such plea would be hit by acquiescence coupled with leaches. 22.6. 22.5. Even if the respondent's plea on ground of mistake were to be considered then also such plea would be hit by acquiescence coupled with leaches. 22.6. When the respondent accepted the premium amount/deducted the premium amount from salary of the petitioner's husband and when the respondent continued the said arrangement for almost 6 years i.e. until death of petitioner's husband, the respondent State acquiesced to the membership of the petitioner's husband. 22.7. Therefore now, after death of petitioner's husband, the respondent cannot turn around and deny the payment of insurance amount and/or the respondent having acquiesced to the membership of the petitioner's husband, it now cannot turn around and claim that said employee was not eligible to be the member of the scheme. 23. On the same premise, the respondents' refusal is not justified because the respondents cannot raise and cannot be permitted to raise plea of mistake i.e. the plea that the contract was entered into by mistake after death of the person who was party to the contract. The contract/agreement was never terminated (by the respondents during life time of the petitioner's husband) on any ground including the ground of mistake. 24. Under the circumstances, the contract/ agreement which remained alive and consequently remained binding to both the parties during life time of the person who was party to the contract, cannot be dissolved or repudiated or even violated by other party after death of the employee. On the said premise also, the refusal by the respondents is unjustified and unsustainable. 25. From foregoing discussion, it has emerged that: (a)the moment the amount towards insurance premium was deducted from the salary of the petitioner's husband and it was credited to the Scheme account and when said practice was continued throughout the tenure of service of petitioner's husband i.e. from 1997 to March 2003, a legal, valid and binding contract came into existence between the petitioner's husband the respondent authorities and the said contract remained alive and in existence/operation until his death. The said contract was never terminated or closed or discontinued. The membership of the employee was never discontinued during his lifetime (until his death). (b)The said Scheme is not any statutory provision and/or is not framed in exercise of any statute or in exercise of rule making powers conferred under the statute. The said contract was never terminated or closed or discontinued. The membership of the employee was never discontinued during his lifetime (until his death). (b)The said Scheme is not any statutory provision and/or is not framed in exercise of any statute or in exercise of rule making powers conferred under the statute. Therefore, the principle that doctrine of promissory estoppel cannot be applied to or cannot be invoked against statute/statutory provision would not be available to the respondents in respect of the said Scheme. (c) On the other hand, in view of the fact that the Scheme is in nature of contract between the parties, the respondents are bound by the fact that irrespective of the provision that a person employed in particular category would not be eligible for being member under the Scheme, the respondents regularly and continuously treated the petitioner's husband as member of the Scheme and accordingly, the respondents regularly and continuously deducted the amount towards premium and credited the said amount towards group insurance scheme and that therefore, refusal to pay the amount towards insurance in accordance with the provisions under the Scheme is unjustified and cannot be sutained. 26. Therefore, so far as the decision by respondents viz. declining to make payment under Ground Insurance Scheme is unjustified and unsustainable. 27. Foregoing discussion and above mentioned reasons have brought out that the decision by the respondents is not sustainable so far as claim for amount under/towards group insurance is considered. To that extent, the respondent's refusal/decision deserves to be quashed and is hereby set aside. 27.1. The respondents are, therefore, directed to calculate the amount which would have been paid to the deceased employee's family/petitioner under the Group Insurance Scheme and shall pay the same to the family of the deceased employee/petitioner within six weeks from receipt of certified copy of this order. With aforesaid observations and direction, present petition is partly allowed and accordingly stands disposed of. Rule is made absolute to the aforesaid extent.