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2020 DIGILAW 405 (CAL)

Kumari Reba Ghosh v. State Of West Bengal

2020-03-11

TAPABRATA CHAKRABORTY

body2020
JUDGMENT 1. The present writ petition has been preferred challenging inter alia an order dated 24 th November, 2017 passed by the respondent no. 2. 2. Records reveal that the petitioner is an unmarried daughter of Chandra Bhusan Ghosh, who retired from the post of an assistant teacher in a primary school on 12 th July, 1979. He thereafter expired on 1 st November, 1990 and his widow was granted family pension and she enjoyed the same till she expired on 15 th May, 2004. The petitioner thereafter submitted an application for grant of family pension. Such claim was ultimately rejected by an order dated 24 th October, 2013 passed by the Secretary, School Education Department. The said order was assailed in a writ petition being W.P. No.34577 (W) of 2013 which, upon contested hearing, was dismissed on 11 th December, 2013. Aggrieved thereby, the petitioner preferred an appeal being M.A.T. No.119 of 2014 which was allowed by a judgment dated 28 th October, 2014. Pursuant to the said judgment, the Secretary passed an order dated 30 th March, 2015 requesting the petitioner to submit all requisite papers indicated in the government order dated 13 th April, 2010 to the concerned Sub Inspector of Schools. It was also directed that on receiving the papers, the said Sub- Inspector of Schools shall forward the same to the District Inspector of Schools (Primary Education) for scrutiny, who in turn shall after proper scrutiny forward the same to the Secretary, School Education Department. Pursuant thereto, the petitioner submitted all the documents as required under the government order dated 13 th April, 2010 to the respondent no.6 but thereafter no further steps were taken by the respondents and aggrieved thereby, the petitioner again approached this Court by filing a writ petition being W.P. No. 16505 (W) of 2016 which was disposed of by an order dated 5 th January, 2017 directing the respondent no.6 to forward all the documents, as received from the petitioner to the respondent no.5. By the said order it was also directed that upon receipt of all papers, the Secretary, School Education Department shall take necessary action. As the said order was not complied with, a contempt application was preferred. In the midst thereof, an order dated 24 th November, 2017 was passed by the respondent no.2. By the said order it was also directed that upon receipt of all papers, the Secretary, School Education Department shall take necessary action. As the said order was not complied with, a contempt application was preferred. In the midst thereof, an order dated 24 th November, 2017 was passed by the respondent no.2. As such, the contempt application was disposed of observing inter alia that if the petitioner is aggrieved by the order dated 24 th November, 2017, her remedy is to challenge the same by way of an appropriate proceeding. Thereafter, the petitioner has filed the present writ petition. 3. Mr. Panda, learned advocate appearing for the petitioner submits that upon perusal of all the documents as submitted by the petitioner and forwarded by the respondent no.5, the respondent no.2 has again rejected the petitioners claim observing inter alia that such claim is not maintainable as per existing policy of the State Government contained in the government order dated 1 st November, 2010. The said ground of rejection is not sustainable since the same is contrary to the findings arrived at by the Honble Appeal Court in M.A.T. 119 of 2014. 4. Mr. Panda further submits that without following the judgment delivered in M.A.T. No. 119 of 2014, the petitioners claim had been rejected referring to another judgment delivered in M.A.T. No.869 of 2014. Considering the facts involved in the instant lis , the Honble Appeal Court passed an order in M.A.T. 119 of 2014. The same has attained finality and is binding upon the parties inter se . The judgment delivered in M.A.T. No.869 of 2014 has no manner of application in the instant case. 5. Mr. Panda submits that an identical issue was considered by this Court in a writ petition being W.P. No. 23466 (W) of 2017 (Bharati Hazra -vs- The State of West Bengal & Others) and the order passed in the same has been complied and as such the respondents cannot take a different stand. A copy of the order passed by this Court in W.P. No.23466 (W) of 2017, as produced, be kept on record. 6. Mr. Pal, learned advocate appearing for the State respondents submits that the issue pertaining to the claim of an unmarried daughter has not yet been finally decided by the Honble Appeal Court. A copy of the order passed by this Court in W.P. No.23466 (W) of 2017, as produced, be kept on record. 6. Mr. Pal, learned advocate appearing for the State respondents submits that the issue pertaining to the claim of an unmarried daughter has not yet been finally decided by the Honble Appeal Court. The State authorities did prefer an appeal against an order dated 17 th January, 2018 passed by this Court in Bharati Hazra (supra). The said appeal, however, has been dismissed for default and an appropriate application has already been filed for restoration. In view thereof, the matter needs to be adjourned till the appeal preferred by the State respondents in an identical matter is heard finally on merits. 7. The argument of Mr. Pal that since the appeal preferred against the judgment delivered in Bharati Hazra (supra) has not yet been dismissed on merits, the Court should adjourn the matter till such appeal is decided is not acceptable to this Court. Mere pendency of the said appeal does not debar this Court from adjudicating the lis involved in the present matter. If such procedure is adopted, it will frustrate the concept of adherence to due process of law. 8. The issue which has arisen for consideration 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) Benefit Scheme, 1981, is entitled to family pension. The said issue has been answered by this Court in a writ petition being W.P. No.23466 (W) of 2017 preferred by one Bharati Hazra. The appeal preferred against the same has been dismissed for default. The order, passed in the said writ petition has, however, been complied with by the respondents subject to the result of the appeal. 9. A perusal of the impugned order dated 24 th November, 2017 reveals that the petitioners claim has been rejected on two grounds. The first ground is that the petitioner is not entitled to family pension in view of the government order dated 1 st November, 2010. 9. A perusal of the impugned order dated 24 th November, 2017 reveals that the petitioners claim has been rejected on two grounds. The first ground is that the petitioner is not entitled to family pension in view of the government order dated 1 st November, 2010. The respondent no.2 erred in law in rejecting the petitioners claim on the said ground in spite of being aware of the fact that the Honble Appeal Court in M.A.T. No. 119 of 2014 has categorically observed ' in view of the said Government Order dated 15 th 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 . An order passed by an executive functionary in derogation to the order passed by the Honble Appeal Court is a nullity (see the judgment delivered in the case of Manohar Lal (D) by Lrs. -vs- Ugrasen (D) by Lrs. & Ors , reported in 2010 (4) Supreme 519 ). 10. The other ground on which the petitioners claim has been rejected is that according to the respondent no.2 an identical issue has been decided and a similar claim has been rejected by the Honble Appeal Court in another matter being M.A.T. No.869 of 2014. The said ground of rejection is also not acceptable to this Court. The issue inter se the parties herein has already been decided and such decision has attained finality through the judgment delivered in M.A.T. No.119 of 2014. In the case of Bharati Hazra (supra), the judgment delivered in M.A.T. No.869 of 2014 has been considered and distinguished by this Court. The facts involved in M.A.T. No.869 of 2014 are also not similar to the facts of the instant case. 11. In view of the judgment delivered in M.A.T. No.119 of 2014, the only issue which was relegated to the Secretary, School Education Department for consideration was as to whether the petitioner had satisfied and fulfilled the conditions as laid down in the government order dated 13 th April, 2010. In the impugned order dated 24 th November, 2017 passed by the respondent no.2 there is no statement that the petitioner had failed to comply with the conditions laid down in the said government order dated 13 th April, 2010. 12. In the impugned order dated 24 th November, 2017 passed by the respondent no.2 there is no statement that the petitioner had failed to comply with the conditions laid down in the said government order dated 13 th April, 2010. 12. For the reasons discussed above, the impugned order dated 24 th November, 2017 passed by the respondent no.2 is set aside and the respondents are directed to extend the benefits of family pension to the petitioner within a period of eight weeks from the date of communication of this order. 13. With the above observations and directions the writ petition is disposed of. There shall however be no order as to costs. Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.