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2018 DIGILAW 124 (CAL)

Bharati Hazra v. State of West Bengal

2018-01-17

TAPABRATA CHAKRABORTY

body2018
JUDGMENT : TAPABRATA CHAKRABORTY, J. 1. The short issue which arises for consideration in the present writ petition is as to whether an unmarried daughter of an approved teacher, who retired prior to introduction of the West Bengal Recognised Non-Government Educational Institution Employees (Death-cum-Retirement) Benefits Scheme, 1981 (in short, the DCRB Scheme) on and from 1st April, 1981, is entitled to the benefits of family pension. 2. The petitioner's father, namely, Atul Krishna Hazra (in short, Atul) was an approved staff of Barbaria Hazra Vidyapith (H.S) (in short, the said school). He retired from his service prior to coming into effect of the DCRB Scheme. The benefits of the DCRB Scheme were extended to Atul and he enjoyed the same till his death on 18th August, 1988. Thereafter, the benefits of family pension were extended to the petitioner's mother, namely, Mandakini Hazra and she enjoyed the said benefits till her death on 5th March, 2011. After her mother's death, the petitioner sought for the benefits of family pension. Her prayer was duly forwarded by the headmaster of the said school to the respondent no. 5 by a letter dated 28th September, 2011 who, in turn, forwarded the same to the respondent no. 4 but the petitioner's pension case was returned back to the respondent no. 5 by a memo dated 16th January, 2013 observing, inter alia, that no benefit of family pension has yet been extended to unmarried daughters of teachers who retired or died-in-harness prior to 1st April, 1981. In the said memo it was also observed that the issue in question is under consideration of the government. 3. Mr. Dutta, learned advocate appearing for the petitioner submits that Atul, who retired prior to 1st April, 1981, i.e., the date from which the DCRB Scheme came into effect, was extended the benefits of the DCRB Scheme in terms of the government order dated 15th June, 1990 on the same terms and conditions and accordingly he got the benefits as extended to teachers, who retired after coming into effect of the DCRB Scheme. Accordingly, after the death of Atul, the benefits of family pension in terms of para 26(a) of the DCRB Scheme, were extended to his widow, who enjoyed the same till her death on 5th March, 2011. Accordingly, after the death of Atul, the benefits of family pension in terms of para 26(a) of the DCRB Scheme, were extended to his widow, who enjoyed the same till her death on 5th March, 2011. There can be no denial of the fact that an unmarried daughter of a deceased teacher is entitled to the benefits of family pension in terms of para 26(c) of the DCRB Scheme. As the petitioner's father was brought under the purview of the DCRB Scheme, the petitioner automatically became entitled to the benefits of family pension in terms of the DCRB Scheme after the demise of her mother. The respondents have withheld the benefits of family pension of the petitioner misconstruing the provisions of the DCRB Scheme and the contents of the government order dated 1st November, 2010. In support of such arguments advanced, reliance has been placed upon the judgment delivered in the case of Indu Prava Ghosh v. State of West Bengal, reported in 2010 (1) CLJ (Cal) 114 and an unreported order dated 28th October, 2014 passed in MAT 119 of 2014. 4. Per contra, Mr. Saugata Bhattacharya, learned advocate appearing for the State respondents contends that by the government order dated 1st November, 2010, the pensionary benefits under the DCRB Scheme have been extended only to the living employees who retired prior to introduction of the 1981 DCRB Scheme and to the living widows of the employees who died-in-harness prior to introduction of the 1981 DCRB Scheme. There is no indication in the said government order dated 1st November, 2010 that unmarried daughters of the said employees would also be entitled to the benefits of family pension under the DCRB Scheme. The said government order categorically excludes an unmarried daughter and accordingly, the petitioner's claim is not sustainable. The petitioner has also not challenged the government order dated 1st November, 2010 and as such the writ petition is liable to be dismissed. In support of such arguments advanced, reliance has been placed upon an unreported order dated 3rd April, 2017 passed in MAT 869 of 2014. 5. In reply, Mr. Dutta submits that in similar cases State has complied with the directives of this Court directing grant of family pension to unmarried daughters of deceased teachers, who retired prior to 1st April, 1981. 5. In reply, Mr. Dutta submits that in similar cases State has complied with the directives of this Court directing grant of family pension to unmarried daughters of deceased teachers, who retired prior to 1st April, 1981. In paragraph 3 of the writ petition it has been categorically stated that the petitioner is an unmarried daughter of the deceased teacher and she comes within the ambit of the government order dated 13th April, 2010 by which the benefits of family pension have been extended to unmarried daughters “even after attaining the age of 25 years till their marriage or death”. 6. Clause 3 of the government order dated 15th June, 1990 runs as follows: “3. After careful consideration of the matter, the Governor has now been pleased to decide that the retirement benefits, as provided for in the aforesaid Scheme, shall stand extended to the teaching and non-teaching employees of the non-government educational institutions and organisations covered by the aforesaid Scheme, who retired prior to 1.4.81 on the same terms and conditions and subject to due adjustment of pension and exgratia increases and aforesaid as were or are being drawn by such pensioners against revised retirement benefits to be sanctioned to them in terms of this order.” 7. On the basis of the said government order, the petitioner's father, who retired prior to 1st April, 1981, was granted the benefits of the DCRB Scheme, which he enjoyed in terms of the government order dated 15th June, 1990 till his death on 18th August, 1988. After the death of Atul on 18th August, 1988, his widow automatically became entitled to the benefits of family pension in terms of the DCRB Scheme, which she enjoyed till her death on 5th March, 2011. Thus, even prior to issuance of the government order dated 1st November, 2010, the petitioner's mother was extended the benefits of family pension in terms of the DCRB Scheme. The State now cannot deny extension of the benefits of family pension provided under the DCRB Scheme to the petitioner, who is unmarried daughter of the deceased teacher, having brought the petitioner's father under the purview of the DCRB Scheme on the basis of the government order dated 15th June, 1990. 8. The State now cannot deny extension of the benefits of family pension provided under the DCRB Scheme to the petitioner, who is unmarried daughter of the deceased teacher, having brought the petitioner's father under the purview of the DCRB Scheme on the basis of the government order dated 15th June, 1990. 8. By the previous government order dated 15th June, 1990 all employees, who retired prior to 1st April, 1981, were extended the retirement benefits available to an employee under the DCRB Scheme on the same terms and conditions. Subsequent thereto, a restriction was sought to be introduced by a departmental circular dated 12th April, 2006 which was also set aside and quashed by the judgment delivered in the case of Indu Prava Ghosh (supra). Thus, the respondents now cannot deny the benefits of the DCRB Scheme to the petitioner on a purported plea that the said benefits would be restricted only to the living employees who retired prior to introduction of the 1981 DCRB Scheme and to the living widows of the said employees who died-in-harness prior to introduction of the 1981 DCRB Scheme. Mr. Bhattacharya has also not been able to show that the said government order dated 1st November, 2010 has been issued in supersession of the earlier government order dated 15th June, 1990. Furthermore, the said government order dated 1st November, 2010 states that it applies to the categories of employees detailed in paragraph 3, who were not covered under the DCRB Scheme. 9. The order passed in MAT 869 of 2014, upon which much reliance has been placed by Mr. Bhattacharya, would reveal that the appellant therein was an unmarried daughter of a primary school teacher who expired in the year 1962 prior to introduction of the old pension scheme whereas in the instant case the father of the petitioner retired prior to 1st April, 1981 and expired in the year 1988 and availed the benefits of the DCRB Scheme. Thus, the judgment delivered in MAT 869 of 2014 is distinguishable on facts. In the said matter the government order dated 15th June, 1990, the judgment delivered in the case of Indu Prava Ghosh (supra) and the order dated 28th October, 2014 passed in MAT 119 of 2014 were also not cited and as such the Hon'ble Court had no opportunity to consider the same. 10. In the said matter the government order dated 15th June, 1990, the judgment delivered in the case of Indu Prava Ghosh (supra) and the order dated 28th October, 2014 passed in MAT 119 of 2014 were also not cited and as such the Hon'ble Court had no opportunity to consider the same. 10. The order dated 28th October, 2014 passed in MAT 119 of 2014, upon which reliance has been placed by Mr. Dutta, is squarely applicable to the facts of this case. In the said order it has been categorically observed: “However, the said scheme was subsequently modified vide government memorandum dated 15th June, 1990 vide G.O No. 163-EDN(B)/(IM-54/88) for extending the benefits of DCRB Scheme of 1981 to the widow and the unmarried daughters etc., of the retired teacher who retired from service even prior to 1st April, 1981. In view of the said Government Order dated 15th June, 1990 the writ petitioner being the unmarried daughter of the deceased teacher, in our view, is entitled to get the benefits of family pension, introduced under the DCRB Scheme of 1981.” 11. Accordingly, this Court directs the respondents to extend the benefits of family pension to the petitioner within a period of eight weeks from the date of communication of the order subject to fulfilment of the conditions as laid down in the government order dated 13th April, 2010. 12. With the above observations and directions the writ petition is disposed of. 13. There shall, however, be no order as to costs. 14. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.