IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 5591 of 2008
Lalita Kandulna .... Petitioner
Versus
The State of Jharkhand & ors. .... Respondents
CORAM: HON'BLE MR. JUSTICE D.N. PATEL
For the Petitioner : Mr. M.M. Pan, Advocate
For the RespondentState : J.C. to G.P.IV
For Respondent No. 5 : Mr. S. Shrivastava, Advocate
nd
08/Dated: 22 September, 2011
1.
The present petition has been preferred by the widow of Assistant Teacher
for getting deathcumretirement benefits.
2. It is submitted by learned counsel for the petitioner that husband of the
petitioner was appointed as Assistant Teacher at R.C. Primary School, Kurkura,
District Simdega with effect from 6th December, 1983 and, thereafter,
petitioner’s husband was serving sincerely, honestly, diligently and to the
satisfaction of the respondents. Never any show cause notice was given to the
husband of the petitioner and he was getting salary from the Government. The
petitioner’s husband expired on 26th September, 2005 during the course of his
employment and, therefore, the petitioner being a widow is entitled to get the
deathcumretirement benefits. The deathcumretirement benefits have been
denied to the petitioner only on the ground that her husband was illegally
appointed and dehors the procedure established by the respondents. Thus after
the death of husband of the petitioner, this ground is not tenable at law and the
petitioner is entitled for deathcumretirement benefits of her husband.
3. Learned counsel for the respondentState vehemently submitted that the
husband of the petitioner was not appointed in accordance with law and he was
not having necessary Teachers Training Certificate and, therefore, he could not
be appointed as Assistant Teacher. Moreover, his services were not approved by
the respondents in the year 1999 and, therefore, the petitioner is not entitled to
get the deathcumretirement benefits because of death of her husband.
4. Learned counsel for respondent no. 5 submitted that as per Rule 58 of the
Jharkhand Pension Rules, 2000, once the appointment is made under the
Government on substantive and permanent basis and if he is paid salary by the
Government, then there is no reason to not pay pension and such other
retirement benefits and as per Annexure3 to the memo of the petition the
services of the husband of the petitioner have been approved by the respondents
and there is no denial in the counter affidavit that the services of the husband of
the petitioner were never approved. Neither it has been stated that Annexure 3
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is a fabricated document.
5. Having heard learned counsel for both the sides and looking to the facts
and circumstances of the case, I hereby quash and set aside the order passed by
respondent no. 3 dated 3rd December, 2007, which is at Annexure2 to the memo
of the petition mainly for the following facts and reasons:
(i) The husband of the petitioner was appointed as Assistant Teacher at
R.C. Primary School, Kurkura, District Simdega on 6th December, 1983,
thereafter, husband of the petitioner worked honestly, sincerely, diligently
and to the satisfaction of the respondents and never any show cause
notice was given to the husband of the petitioner for any misconduct nor
for as alleged irregular appointment.
(ii) It further appears from Annexure3 to the memo of the petition that
the District Superintendent of Education, Gumla (now Simdega) has
approved the appointment of the husband of the present petitioner in R.C.
Primary School, Kurkura, District Simdega. Thus, the services of the
husband of the petitioner were approved by the Government and the pay
scale of Rs. 535765 is also given, which is at Annexure3 to the memo of
the petition.
(iii) It also appears that the respondents have also granted Matric Trained
Scale with effect from 17th December, 1995 to the husband of the
petitioner, meaning thereby, the necessary Teachers Training Certificate
Examination must have been cleared by the husband of the petitioner and,
thereafter, Matric Trained Scale was given to the husband of the petitioner.
This fortifies the stand of the petitioner that the services of the husband of
the petitioner was further approved vide order at Annexure4 to the memo
of the petition.
(iv) Thereafter, husband of the petitioner was given salary by the
Government and the petitioner’s husband expired on 26th September, 2005
during the course of his employment. Thus, the petitioner is entitled to get
the deathcumretirement benefits because of death of her husband, who
was serving as Assistant Teacher in the aforesaid school.
(v) Learned counsel for the respondentState contended that the
appointment of the husband of the petitioner was dehors the provisions of
law. This contention is not accepted by this Court, at this stage i.e. after
the death of husband of the petitioner. Appointment of husband of
petitioner was never terminated and/or cancelled on account of alleged
irregularity or illegality. No such order has been brought on record by the
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respondents. Moreover, it is further submitted by learned counsel for the
respondentState that the services of the husband of the petitioner was
not approved in the year 1999. This contention is also not accepted by
this Court, looking to Annexure3 dated 24th February, 1984 as well as
looking to Annexure4 dated 7th February, 1997. By these two annexures,
the services of the husband of the petitioner were confirmed and
approved, necessary pay scales were also given after attaining further
Teachers Training Certificate and Matric Trained Scale was also given to
him which is further approved, looking to Annexure4/1 a detailed
calculation of fixation of pay scale was given by the District
Superintendent of Education, Gumla (now Simdega). Thus, the reasons
assigned in Annexure2 by the respondents while passing the impugned
order dated 3rd December, 2007 are absolutely wrong reasoning and runs
counter to Annexures 3, 4, 4/1.
(vi) Looking to Rule 58 of the Jharkhand Pension Rules, 2000, it appears
that the petitioner is entitled to get the deathcumretirement benefits. For
the ready reference, Rule 58 of the Jharkhand Pension Rules, 2000 reads
as under:
“58. The service of a Government servant does not qualify for pension
unless it conforms to the following three conditions:
First – The service must be under Government.
Second – The employment must be substantive and permanent.
Third – The service must be paid by the Government.”
Thus, in view of the aforesaid Rule 58, the husband of the petitioner
was in the service under the Government, he was employed on the
substantive and permanent basis and husband of the petitioner was also
paid salary by the Government. Thus, all these conditions have been
established in the facts of the present case and, therefore, the petitioner is
entitled to the pension which is now known as family pension. Looking to
this Rule to be read with Annexure7 circular, issued by the respondent
State authorities, it appears that this is extended even for the teachers of
the Government aided minority school.
(vii) It has been held by the Hon’ble Patna High Court in the case of
Ranju Devi v. The State of Bihar & ors., reported in 1999 (3) PLJR 504
in paragraphs 5 and 6, which read as under:
“5. This Court fails to appreciate the said submission of the learned
counsel for the State. It is not the case of the respondents that the
appointment of the petitioner’s husband was ever terminated and/or
cancelled on account of the alleged irregularity and/or illegality. No
such order has been brought on the record by the respondents. It may
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be true that the husband of the petitioner absented after 7.10.1996
but so long his service was not terminated, he continued to be in
Government service.
6. It is not disputed that as per the amended provisions relating to
payment of family pension, the requirement of minimum one year
service prescribed in the Finance Department’s Memo No.
Pen103/649505 dated 3.9.1964 was done away with by the State
Government and it was decided that the person will be entitled to
family pension in case of death of a Government employee who was
examined by the doctor at the time of his initial appointment. From
the order, contained in Annexure 1 it appears that the joining of the
petitioner’s husband was to be accepted after production of medical
certificate from the Civil Assistant Surgeon. It is not the case of the
respondents that the petitioner’s husband was not examined by the
doctor before his joining. It is submitted on behalf of the petitioner
that the medical certificate was submitted by the petitioner which is
already on record in the file of the petitioner’s husband maintained in
the department.”
(emphasis supplied)
In view of the aforesaid decision also, the petitioner is entitled to
get the deathcumretirement benefits of her husband and the plea taken
by the respondents that when her husband was appointed, there was
irregularity in his appointment is not permitted to be taken, even after
death of husband of the petitioner.
6. As a cumulative effect of the aforesaid facts, reasons and judicial
pronouncement, I hereby quash and set aside the order passed by respondent
no. 3 dated 3rd December, 2007, which is at Annexure2 to the memo of the
petition. I hereby direct the respondents to grant all the deathcumretirement
benefits, which are legally payable to the petitioner. This exercise will be
completed by respondent no. 3 within a period of four weeks from the date of
receipt of a copy of the order of this Court. I also hereby direct respondent nos.
1 and 2 to make the actual payment of monetary benefit to the petitioner within
further period of four weeks, thereafter. Necessary pension papers and such
other papers will be sent by the concerned respondent authorities to respondent
no. 5 within a period of one week from the date of receipt of a copy of the order
of this Court and respondent no. 5 will decide the same promptly.
7. The writ petition is allowed with the cost of Rs. 5,000/ (Rupees five
thousand), which will be paid by the respondentState of Jharkhand to the
petitioner within a period of two weeks from the date of receipt of a copy of the
order of this Court.
8. The writ petition is allowed and disposed of.
(D.N. Patel, J.)
Ajay